Reference Materials - NJ Attorney General`s Advocacy

COMMUNICATIONS WITH REPRESENTED
PERSONS IN THE CRIMINAL CONTEXT:
R.P.C. 4.2 IN THE CRIMINAL CONTEXT
JUNE 22, 2016
REFERENCE MATERIALS
ROBERT LOUGY
Acting Attorney General of New Jersey
MARGARET A. COTOIA
Director, AGAI
TABLE OF CONTENTS
Page 1
Faculty Biographies ....................................................................................................................... -i1. Overview/What is R.P.C. 4.2?..................................................................................................1
a. Text of R.P.C. 4.2..................................................................................................................1
b. DCJ Policy on Communications with Represented Persons.................................................2
2. Interpreting R.P.C. 4.2: What Does R.P.C. 4.2 Prohibit?
a. In re Alcantara, 144 N.J. 257 (1995) ..................................................................................20
b. Text of R.P.C. 3.4 ................................................................................................................26
c. State v. McCoy, 261 N.J. Super. 202 (Law Div. 1992) ....................................................27
d. State v. Sanchez, 129 N.J. 261 (1992) ...............................................................................31
e. State v. P.Z., 152 N.J. 86 (1997) ........................................................................................39
3. When is there a “Matter” Under R.P.C. 4.2?
a. State v. Bisaccia, 319 N. J. Super. 1 (1999) .......................................................................60
b. State v. Porter, 210 N.J. Super. 383 (App. Div. 1986) ......................................................69
c. State v. Lenin, 406 N.J. Super. 361 (App. Div.), certif. denied, 200 N.J. 477 (2009) .......74
4. Organizations/Corporations
a. Text of R.P.C. 4.3................................................................................................................81
b. Text of R.P.C. 1.13 .............................................................................................................82
c. State v. CIBA-Geigy Corp, 247 N.J. Super. 314 (App. Div.), appeal granted, 126
N.J. 338, 598 A.2d 895 (1991), appeal dismissed, 130 N. J. 585, 617 A. 2d 1213
(1992) ..................................................................................................................................84
d. Opinion 668, 132 N.J.L.J. 573 (1992) ...............................................................................90
e. In re Opinion 668 of the Advisory Commission on Professional Ethics, 134 N.J.
294 (1993) ..........................................................................................................................95
f. Report of Supreme Court Committee on R.P.C. 4.2 (3/20/95) ..........................................99
g. Supplemental Report of Supreme Court Committee on R.P.C. 4.2 (5/16/96) .................125
h. Klier v. Sordoni Skanska Construction Co., 337 N.J. Super. 76 (App. Div. 2001) .........137
i. In Re State Grand Jury Investigation, 200 N.J. 481 (2009) ..............................................144
j. Casey v. University of Medicine and Dentistry of N. J., 2010 N.J. Super.
Unpub. LEXIS 1866 (App. Div. 2010) .............................................................................153
5. NJ L&PS Operating Procedures 1-2016: Use of Social Media for Office Purposes and
Use of Personal Social Media by Department Employees (May 2016) ...........................161
1
These numbers correspond to the numbers in right hand corner of each page.
FACULTY BIOGRAPHIES
AAG Christine A. Hoffman is a Deputy Director of the Division of Criminal Justice and former
Chief of the Division's Corruption Bureau. AAG Hoffman previously served as Deputy Chief of the
Division's Major Crimes Bureau and Assistant Prosecutor with the Burlington County Prosecutor=s
Office. AAG Hoffman is a member of the Attorney General=s Advocacy Institute faculty, and is a
member of the National Attorneys General Training and Research Institute faculty.
DAG Anthony A. Picione is Chief of the Division of Criminal Justice’s Corruption Bureau. Mr.
Picione’s practice concentrates largely on white collar crime, particularly offenses involving public
officials and public funds. Mr. Picione received his J.D. cum laude from the University of
Pennsylvania Law School in 1995 and received his B.A. magna cum laude from Drew University in
1992. Prior to joining the Division in 1999, Mr. Picione was associated with the law firm of Pitney,
Hardin, Kipp & Szuch.
i
RPC 4.2. Communication with Person Represented by Counsel
In representing a client, a lawyer shall not communicate about the subject of the
representation with a person the lawyer knows, or by the exercise of reasonable diligence
should know, to be represented by another lawyer in the matter, including members of
an organization's litigation control group as defined by RPC 1.13, unless the lawyer has
the consent of the other lawyer, or is authorized by law or court order to do so, or unless
the sole purpose of the communication is to ascertain whether the person is in fact
represented. Reasonable diligence shall include, but not be limited to, a specific inquiry
of the person as to whether that person is represented by counsel. Nothing in this rule
shall, however, preclude a lawyer from counseling or representing a member or former
member of an organization's litigation control group who seeks independent legal advice.
HISTORY: Adopted September 10, 1984, to be effective immediately; amended June 28, 1996,
to be effective September 1, 1996; amended November 17, 2003 to be effective January 1, 2004
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COMMUNICATIONS
WITH
REPRESENTED PERSONS
,_ .... .
Department of Law and Public Safety
Division of Criminal Justice
2
DEPARTMENT -OF LAW AND PUBLIC SAFETY
STATE OF NEW JERSEY .
DIVISION OF CRIMINAL JUSTICE
.COMMUNICATION S WITH REPRESENTED PERSONS
Table of Contents
I.
The Rules of Professional Conduct Prohibit Ex Parte
Communications with Represented Persons . . . . . . . . . . . . . . . . . .
2
A. Gene ral Rule for Civil and Criminal Enforcement;
Represe nted Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
B. Is the Person Represented?
3
1 . Has the person retained an attorney?
3
2 . Is the person a member. ~fan organization's
litigation control group 1
.. . . .. . .. •. . ... . .. . . . . . . .. .
4
a. Communications with former employees;
<?rganizational representation .. . . . . . . . . .· . . . . . . . . . . . 6
b. Communications with former or current employe es;
individual representation . . . . . . . ..... ~ ... ... . . . . . · . 6
c. Initiation of communication by unrepre sented
c ontrolling individuals. . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Is There a .. Matter· Within the Meaning of R.P.C. 4.2?
. . . . . . .
D. Has the Attorney Cons ente d to an Ex Parte Communication
with the Client? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
7
9
E. Circumstances in which Ex Parte Communications are Authorized
by l aw. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
9
1. There Must Exist One of Six Circumstances:
a . The communication is to determine if represe ntation
exists. . . • . . . . . . . . . . . . . . . . . . . . . . . .. · . . . . . . . .
3
9
b. The communication is made in accord with legal or
judicial process.
. . . . . . . . . . . . . . . . . .. . . . . . . . .
9
·c. The represented person initiates the communicatio-n
and:
( 1) The client manifests a valid waiver and
(i) A Superior Court judge approves the waiver or
{ii} The client ha~ obtained substitute counsel . . 10
d. The communication is made at the time of the arrest
and the person has voluntarily wa.ived hisrlg,htto counsel 11
e. T.he communication is made in the course of a~ !
investigation of different or ongoing criminal activity
or other unlawful conduct . . . . . . . . . . . . .. · . . . . . . .
•
11
J
f. There is or may be a thr~at to the safety or life of any
person.
. ... .... .... .· . . . . . . . . . . . . . . . . . . . . . 12
2. Procedures .f or ,conducting ~x p11rte communications
authorized by law.. . . . . . . . . . . .... . . . . . . . . . . . . .
a. Deference to
attorn~y-client
relationship.
12
. . . . . . . . 12
b. Dealing with conflict of interest . . . . . .· . . . . . .
12
c.
12
Attorney~client
meetings.
II. Responsibility for the Conduct of Nonlawyer Assistants.
13
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DEPARTMENT OF. LAW AND PUBLIC SAFETY
STATE OF NEW JERSEY
DIVISION OF CRIMINAL JUSTICE
.c.Q.MMUNICATIONS WITH REPRESENTED PERSO NS
This directive is is sued under the authority of the Director of the Division of
Criminal Justice pursuant
the Criminal Justice ·Act of 1970, N.J. S.A. 52:178-97 et ·
seq. The Divi sion of Criminal Justice is committed to ensuring that its attorneys
perform their duties in accordance with the highest ethical standards. The purpose of
this directive
to provide a compreh.ensive, clear, and uniform set of rules governing
the circumstances under ·which ·Division 9f Criminal Justice attor.n eys· may
communicate or cause others to communicate With persons known to be represented
by counsel. in the course of law enforcement investigations and proceedings. The
policies announced in this directive will guide employees of the Division of Criminal
Justice as they secure evidence and conduct litigation, conduct grand jury proceedings
and other civil and criminal legal proceedings, supervise litigation and direct employees
in the discharge of their duties in an appropriate and ethical manner.
to
is
This directive of policy and procedure is promulgated to discharge the Director' s
responsibility under R.P. C. 5. 1, which provides that .. Every law :irm and organization
. authorized by the Court Rules to practice law in this jurisdiction sh~JI make reasonable
efforts to ensure that member lawyers or lawyers otherwise participating in the
organization's work undertake measures giving reasonabl e assurance that all lawyers
conform to the · Rules·· of Professi.onal Conduct." It is expected that every deputy
attorney general employed by the Division of Criminal Justice will become familiar with
the contents of this document and guide his or her .actions acc9rdingly. Compliance
with the policies and procedures contained herein will help assure that deputies meet
their ethical obligations. The Rules of Professional Conduct require every attorney to
conform his or her conduct to the ethical standards announced by the Supreme Court.
In particular, "A lawyer is bound by the Rules of Professional Conduct notwithstanding
that the lawyer acted at the direction of another person." R.P.C. 5.2{a). Thus, every
deputy must exercise critical judgment when resolving situations that implicate the
ethical responsibilities of the lawyer. To the extent a situation arises where the proper
course of conduct is not clearly ascertainable by . reference to this directive,· the
materials cited herein, and any other authorities, the deputy should consult the
appropriate supervisor for guidance. 1
1
..A
subordinate lawyer does not .violate the Rules of Professional Conduct if that lawyer
acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of
professional duty." R.P. C. 5.2(b) .
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I.
The Rules of Professional Conduct Prohibit Ex Parte Communications with
Represented Persons.
A. General Rule for Civil and Criminal Enforcement; Represented Parties.
Except as provided in t his directive or as oth e rwis~ auth orized b y law, a deputy
attorney general may not communicate, or caus e another t o communi cate, with a
represented person who the deputy knows is represented hy an attorney concerning
the subject matter of the representation without the consent of the lawyer
·; enting such person.
R.P.C. 4.2 was amended effective September 1, 1996, and provides;
~ representin
a client, a lawyer shall not communicate
about the subject of the re resent ti
lawyer nows, or by the exercise of easo a
s_ ou · now, to be represented by another lawyer .in the
matte~, including members of an organization's litigation
control group as definea by RPC 1.13, unless the lawyer
has th e consent of the other lawyer or is authorized by law
to do so, or unless the sole purpose of the communication
is to ascertain whether the person is in fact represented.
Reasonable .diligence shalf include, but not be limited .to, a
specific inquiry of the person as to whether that person is
represented by counsel. Nothing in this rule shall, however,
preclude a lawyer from counseling or representing a member
or former member of an organization's litigation control
group who seeks independent lega~ advice.
,:
This formulation of the rule is unique to New Jersey. Consequently, reference
to authorities from other juiisdictions may be a useful interpretive aid, but must be
viewed circumspectly. For example, the New Jersey rule use.s the word .;person,"
which comports with the 1995 amendment of R.P. C. 4.2 contained in the American
Bar Associatioo'~odel Rules of Professional Conduct, but many jurisdictions still
refer to a Hparty." Further, the New Jersey rule is unusual in that it affirmative.l y
requires due diligence in determining whether. a person is represented in a matter, and
makes ref erences to an organization's litigation control group.
In determining whether it is permissible to speak to a represented person, the
following questions should be considered:
•
Is the person represented?
2
6
•
If the person is not personally represented,
organization's litigation control group?
•
Is there a ''matter'" concerning which the person is represented?
•
If the person is represented in a "matter" that is the subject of the intended--..
communication, has the attorney representing the person consented to the
communication?
•
Would the ex parte communication otherwise be "authorized by law"?
IS
he or she a member of an
B. fs the Person Represented?
1. Has the person retained an attorney?
A person should be considered a "represented p erson·· within the meaning of
R.P.C. 4.2 only if both of the following circumstances exist:
( 1 ) ·The person has retained counsel or accepted counsel by appointment or
otherwise; and
·
··
·
· (2) The .representation
is ongoing and concerns the subject matter in question.
Addftionally, the p~rson should be treated as thouoh he or she is represented if
(3) The person has been charged by indictmen11 or !COmplaint in a crimina.! case.
The third factor reflects the fact that the Sixth Amendment right to ·counse!
attaches at the time of the filing of an indictment or complaint. R.P. C. 3.8 requires
a prosecutor to make reason~ble efforts to assure that the accused has been advised
of the right to, and the procedure for obtaining, counsel and has been given reasonable
opportunity to obtain counsel. Further, that rule prohibits a prosecutor from seeking
to obtain from an unrepresented accused a· wafver of important post-indictment,
pretrial rights . . Additionally, in State v. Sanchez, 1.29 N.J. 261 ( 1991),
Court
observed that when a. defendant is indigent and awaiting the appointment of counsel,
"the identity of the lawyer for an indigent defendant is known: it will be the Public
Defender or. designated counsel." 129 N.J. at 277. Thus, ordinarily a prosecuting
attorney should not have an ex parte communication with a defendant after the filing
·
of an indictment or formal complaint. 2
the
2
·The initiation of .judicial _
c riminal proceedings is far from a mere formalism. It is the
starting point of our whole system of adversary criminal justice. For it is only then that the
3
7
2. Is the person a member of an organization's fitig.ation C?!ltr~l ~roup?
Even if a person h as not retaine d an atto rney, he or s he is represente d fo r
purposes of R.P. C. 4 .2 if the person is a member of an organization's litigation control
group, and t he organizatio n is represe nted by an atto rney concerning the subje et- ...
matter of the communica tion. R.P.C. 1.13 was a mended in 19 96 to provide
definition a l co ntext to th e phrase "litiga ti on control gro up ":
A lawyer e mployed o r ret ained to represent an organiza~
tio n represents the organization as distinct from its direc~
tors, officers, e mployees, m embers, shareholders or othe r
c onstituents . For the purposes of RPC 4.2 and 4. 3,
however, th e organization's lawyer s hall be deemed ·to
represent not only the orga nizational ent ity but -als o t he
members of its litigation control group. Me mbers of the
litigation control group shall be deemed to include curre nt
agents and e mployees responsible for, or significantly
involved in, the determination of the organization's leg al
position in the matter wheth er or not in litigation, provided
however, that "significant involvement " re quire s in vo l v e~
ment greater, and other t han, the supplying ~of factual
information or data respecting the matter. Former._<;!g.e.(lts
a nd employees who were me mbers of the lit igation ·control ·
group shall presumptively be deemed to be represented in
the matter by the organization's lawyer but may at any tim e
disavow said representation.
(a)
The composition of the litigation c o ntrol group for any organizat io n may change·
.
.
government h as c ommitted itself to prose cute, and only then that the adverse p ositions of
government and defendant hav e solidi fied. It is then that a def end ant finds him self f aced w ith t he
prosecutorial forces of organized society, and immersed in the intric acies of subst antive and ·
procedural criminal law. It is this point, therefore, t hat marks the commencement o f the 'criminal
prosecutions' to which .alone the explicit guarantees of the Sixtl) Amendment are applicable. w Kirby
v. Illinois, 406 U.S. 682, 690~ 91 , 92 S.Ct. 1877, 32 L.Ed.2d 411 ( 1972); accorr:l , S tate v. Farrow,
61 N .J. 4 34 (1 9 7 2). Thus , t he filing of a com plaint by a private c it izen should not be vie w ed as
triggering the applicability of R.P. C. 4 .2 to a deputy attorney g eneral, w ho must undertake an
investigat ion of the matter giving rise to the citizen complaint and determine whether the facts
warrant presentation of tf"!e matter to a grand jury (or prosecution of t he matter as a disorderly or
petty disorderly person offense) . Not until the filing of a _charging instrument by the State is the
deputy attorney general bound by the requiremen ts of R.P.C. 4 .2. Deputies are reminded,
however, that in a civil proceeding R.P. C. 4 . 2 is likely to become ap plicable before the filing of a
c ivil complaint. See section I. C ., infra. ·
4
8
from matter to matter. It cannot, for example, be defined merely by reference to the
officers and directors of a corporation. The deputy attorney g~neral has an obligation
to exercise reasonable diligence in determining whether the person is represented,
including, but not limited to, "specific inquiry of the person as to whether that person
is represented by counsel." R.P.C. 4.2. 3
The deputy attorney general should elicit from the person information respecting
the person's position and duties in the organization, from which an objective
determination can be made as to whether the person is represented as a member of ·
the litigation ~ontrol group pursuant to R.P. C. 1. 13. In advance of the inquiry, every
effort should be made to learn about the organizational structure and personnel of the
organization in order to determine independently who the likely litigation control group
constituents are. 4
The inquiry must' be conducted with the "high degree of caution and
circumspection" advised by the Special Supreme Court Committee when the person
umay be or presumptively is a member of the litigation control group." Report of the
Special Committee on Bee 4.2, Comment on Proposed RPC 4.2, 139 N.J.L.J. 81, 119
(1995). The individual s.h ould be asked for a description of his or her job title and
responsibilities concerning the matter that· is the subj'ect ef the inq·u iry. The focus of
the initial questioning is whether the person is exercising or has exercised responsibility
for the determination of the legal P.osition ~f the organization with respect to the
matter that is the subject of the communication. Until a determination is made that
ex parte communicati.on ' is permissible, care should be taken to avoid eli'c iting
information concerning the person's role in the conduct that is the subject of the
matter.
If, after that inquiry, it remains unclear whether the person is represented
pursuant to R.P. C. 1 .13, the person should be asked, as R.P. C. 4.2 mandates,
whether the person believes that he or she is represented. If the deputy attorney
3
See also. suggested inquiries and statements referenced in R.P.C. 4.2; Supplemental
Report of the Special Supreme Court Committee on B..f!.,S;_._ 4. 2, 145 N.J.L.J. 86 (May 6, 1996)
(hereinafter, "Supplemental Report"'); In re Prudential Insurance Company of Ame·r ica Sales
Practices Litigation, 911 F.Supp. 148, 152 n. 5 (O .N.J . 1995); and In re. Environmental Insurance
Declaratory Judgment Actions, 252 N.J. Super. 510, 5.23·5 24 (Law Div. 1 9911:
4
The deputy attorney general may ask the organization's attorney to supply a list of the
persons the attorney asserts are members of the litigation control group, as well as the persons the
attorney claims to represent in the matter in addition to the organization: Such a list will certainly
be helpful in addressing issues under R.P. C. 4.2 and 4.3, ~nd will also help identify potential
conflicts of interest that must be addressed by the deputy and the organization's attorney. The list
may, however, be overly~inclusinve and should not be viewed as dispositive of the issue of who are
members of the litigation control group.
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9
. general cannot determine whether a person is a member of the litigation control group
and therefore represented by the organization's attorney, or if the deputy i1
unconvinced of the validity of an asserred claim cf organizational representation, an
a_ppl_i.£.a,tion to the cQ.Urt for a determination may b e mad e. (Note that such a m otion
could cause the person to obtain independent counsel, in which c ase that counsel will
be the one who must consent to ex parte communicati ons pursuant to R.P.C. 4 :2.1
Again, deputies are reminded that if a member of an organization is not entitled to
representation by the organization' s attorney, R.P. C. 4.3 requires the deputy to so
inform the member of the organization.
a. Communications with former employees; organizational
rep(esentation.
Former employees of ~n organization who were rl)eR'tbefS...Of the litigation control
group .for the matter, as defined by R.P. C. 1. 13(a), are Qres~J!)J..e.Cko be represented by
the organization's counsel. The former members may·, however, disavow such
representation.
b _ Communications with former or current employees;
individual representation.
A communication with a former or current employee of an_ organi z~tion who is
individually represented by counsel may occur only to the extent otherwise permitted
by R.P.C. 4.2 and this directive. But note that it is the employee's individual attorney,
and not the .organization's counsel, who must be consulted with respect to communication$ .with that person. R.P. C. 4.2; Supplemental Repon, 145 N.J.L.J. 86.
However, a · claim py an attorney .that he or she represents a. II or a large number of
individual current or former employees of an organization does ~ot .suffic~ to establish
that those employees are represented persons. In such c.ircumstan<;;es, prior to
engaging in commUI1ications. that would be prohibited by the R. P. C. and this directive
as a result o.f the ~sserted- representation, the deputy attorney general should
communicate with the individual current or former employee to determine if, in fact,
that employee is represented by that counsel concerning the subject matter of the
investigation or proceeding, and whether that representation is permissible. See,
R.P. C. 4.3. 5 The Supreme Court has repeatedly admonished attorneys concerning the
5
Note that R.P.C. 4.2 requires an attorney to use. Mreasonable diligence to ascertain
whether a person is represented," and defines reasonable diligence, inter 11lia, as •a specific inquiry
of the person as to whether that person is represented by counsel." R.P.C. 4.3 requires attorneys
to ascertain whether persons who are not members of an organization' s litigation control group are
actually represented by the organization's counsel or have a right to such representation upon ·
request. If the person is not so represented or entitled to representation. the attorney ..shall make
known to the person that insofar as the lawyer understands, the person is not being repre~ented by
10
real and potential conflicts of interests posed by ·multiple representation in general, and
representation of organizations and their employees in particular. See, R..P. C. 1. 13(e);
In re Opinion 668, 134 N.J. 294, 302-03 (1993); State v. Bellucci, 81 N.J. 531
(1980); and see, lnre Garber, 95 N.J. 597 (1984}; In reAbrams, 56 N.J. 271 (1970).
It is important to rigorously observe the Court's admonition that "{u)nder no
circumstances and by no stretch of the imagination could an attorney v.dt~· ~:-.··1
propriety ever represent an eyewitness or a material witness to a crime and also
represent, or become professionally associated with, the individual charged with the
commission of such a crime." Garber, 95 N.J. at 608.
c .' Initiation' of communication by unrepresented controlling individuals.
0
An attorney may communicate with a member of a litigation control group who
is not individually'' represented as ·to the subject matter of · the organizati,on's
representation when that individual initiates ·the communication and states; that fi~ or
she is communicating exclusiv'ely in his or her personal capacity and not on behalf of
the represented organization, and manifests that his or her waiver of counsel for the
communication is voluntary, knowing, and informed, and, if willing to do so, signs a
written statement to this effect. Nevertheless,· great care in~st be taken to assure that
the individual does not disclose privileged communications. Upjohn Co. v. United
States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). Consistent with
R_P. C. 4.2 and R.P.C. 4.3, the deputy should advise the··person that the deputy
understands that the person is represented by the organization's counsel and that the
person shou·ld seek in.dependent coonsel. Nevertheless, since the person is free to
seek inde"pendent counsel, the person is also free to waive independent counsel and
proceed as an unrepresented person. Under such circumstances, the deputy attorney
general should promptly notify the organization's attorney that the member of the
litigation control group has disavowed representation, unless such notification woul,j
compromise an on-going criminal investigation. Because of the potential that a
member of the 'litigation control group could divulge matters that are subject to the
attorney-client privilege, this situation should be handled with care and circumspection.
The deputy should consult a supervisor and co~sider the issues raised in section .
E( 1 )(c), infra.
0
C. Is There a .. Matter" Within the Meaning of R.P.C. 4.2?
The change of the word "party" to uperson" in R.P.C. 4.2 was intended
to make clear for purposes of application of the rule, that it is generally irrelevant
the organization's attorney." Note that R.P.C. 4.3. in contrast to R.P.C. 4.2, is always applicable,
even when no ·matter'" exists.
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whether formal litigation has comfT!enced .
In criminal inves tigations, however,
R.P. C. 4. 2 is not applicable prior to tJ-.e filing of formal criminal c harges. 6
The Supplemental Report dealt explicitly with this issue in the context of
criminal cases. See, cover letter of Joseph J. Barraco, Esq., dated May 6, 1996.
(Appendix A).
R.P. C. 4.2 addresses communications with person s·· "W i 1v are
represented in a "matter." The Supplemental Report states :
Ordinarily, a criminal matter does not arise until a complaint
or indictment has been filed or warrant issued, d State v.
Ciba- Geigy Corpor atio n , 247 N.J . Super. 314, 325 -326
(App. Div. 1991), and, as noted above, our definition of
'litigation control group' is narrow and does not include
people who merely have 'factual information or data
respecting the matter ... ' The subject matter of a potential
criminal cause may, however, be comprehended within a
pending civil matter, resulting in the possibility that the
subject of the representation will be the same in both.
Government lawyers should be aware of this possibility.
[Supplemental Report, 145 N.J.L.J. 86).
And see, In re Opinion 668, 134 N.J. 294, 302, 303 (1993) (" ..".we interpret the RPC
... to be in effect after filing of an indictment .... "}.
The amendment of R.P.C. 4.2 included changing the word "party" to "person"
because, in civil matters, the rule is not limited to matters that are actually in litigation.
Further,: R.P.C. 1.13(a) was amended to insert the words "whether or not in litigationH
as a modifier of "the matter," when describing the members of the litigation control
group. The Special .Committee's initial report quite explicitly affir·ms an inte.nt to make
R.P.C. 4.2 applicable to all matters, whether " ... a transactional matter, or a matter in
pre-litigation stages, or in an alternative dispute forum, or a matter under investigation."· 139 N.J.L.J. at 1196. An alternative approach would deny many persons the
benefit they in.tend to derive from hiring an attorney, since many such representations
simply are not undertaken in anticipation of. litigation. Contract negotiations are an
obvious example.
But just as clearly, the Supplemental Report of the Special Committee and the
Supreme Court distinguished criminal investigations from civil matters, for the· reasons
set forth in the Appellate Division's Ciba-Geigy opinion and by the Supreme Court in
6
Once again, deputies are reminded that if there is a parallel civil matter. R.P.C. ·4.2 may be
applicable and must guide the actions of all lawyers who are involved in that civil matter.
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12
In re Opinion 668. Indeed, the Supplemental Report's caution to governme'n t lawyers
that criminal "causes" m ay have the same subject as a pending civil "matter'' plainly
demonstrates an intent to distinguish between criminal causes, which ordinarily do not
b ecome matters until a complaint or indictment has been filed, and civil matters, which
arise at the moment the repre sent.ation is undertaken . The Special Committee
cautioned go v ernment lawyers that in cases in which both C'ivil and crimliidi' C!t:; ~ ion s
are b eing considered or prosecuted, R.P. C. 4 .2 may affect the government attorneys
at different times, or in the event that both action s are being handled by a single
deputy attorney general, the point at which the rule becomes . implicated for that
d eputy may be altered by the existence of the civil matter.
D . Has the Attorney Consented to an Ex Parte Communication wittl the Client?
If a person is represented and if there is "matter" within the m eaning of R. P. C.
4.2, only the attorney for the person may consent to an ex parte c ommunication . In
particular, a deputy attorney general may not initiate or engage in negotiations of a
plea agreement, settlement, statutory or non-statutory immunity agreement, or other
disposition of actual or potential criminal charges or civil enforcement claims,- or
sentences or penalties, nor seek admi ssions or otherwise elicit statements concerning
the matter, .with a person or party who the deputy knows is represented by an
attorney, without the consent of the attorney representing such person or party. There
are very few exceptions to the general rule.
E. Circumstanc es in which Ex Parte Communications are Authorized by Law
1 . A deputy attorney general may communicate, or cause another to
communicate, with a represented person without the consent of the lawyer
representing such· person concerning the "matter" which is the subject of the
representation only if one or more of the following circumstances exist:
a. The communication is to determine if representation exists. R.P. C. 4.2
requires an att orney to use reasonable diligence to determine if the person is fn fact ·
represented by counsel concerning the subject of the inve stigation or proc eeding.
b. The communication is made in accord with legal or judicial process.
A communication is authorized if it is made pursuant to tegal procedures or judicial or
administrative process in accordance with the orders or rules of the c ourt, including,
but not limited to, testimony before a grand jury or the ·service of a grand jury or trial
subpoena, summons and complaint. notice of deposition, administrativ e summons or
subpoena or civil investigative demand. A statement explaining that a s ubpoena is
being served, for example, does not violate R.P. C. 4.2.
·
c. The represented person initiates the communication directly with the
9
13
deputy attorney general or through an intermediary and :
( 1) prior to the commencement of substantive discussions on the
subject matter o f the representation and after being advised by the deputy attorney
general of the client's right to speak through his or h er attorney and to h ave the
client's a ttorney present for the communication, the clieint manifests ·that h ;: or her
waiver of counsel for the communication is voluntary, knowing and informed and, if
willing to do so, signs a written statement to this effect; il!1sf.
(2) a Superior Court judge, or a judge of other court of competent
jurisdiction, has c oncluded that the represented party has:
(i) W aived the presence of counsel ·and that such w ai ver ts
voluntary, knowing, and informed; 7 or
(ii) Obtained substitute counsel or has received substitute counse l
by court appointment, and substitute counsel has consented to the communication.
Cases warranting application of exception c. to the general rule are rare, and
must be handled with great care. R.P. C. 4.2 bans communications with represented
persons, in part, to protect such persons from losing the bene.fit of the representation
without the participation of the retained counsel. In eliciting information that would ·
permit a deputy attorney general to refer a matter to a judge in order to satisfy
subparagraph (c)(2). there is a real potential that the client will divulge information that
is subject to the attorney~client privilege. Therefore, the deputy should consult with
·a superviso r, who should consider assigning an attorney with no responsibilit y for the
prosecution of the matter to handle the representation issue.
The p itfalls of this situation are illustrated by United States v. Lopez, 4 F.3d
1455 (9 Cir. 1993). Improper discussions may complicate the State's ability to
proceed with a case; at the very least, it might require disqualification of the
prosecuting attorney from 'a ny further in~olvement in the proceedings and subject the
deputy to a disciplinary proceeding. Thus, if a deputy attorney general is contacted
by a represented person concerning a "matter" encompassed by R.P.C. 4.2, the initial
response should be a statement that th e deputy may speak only to the attorney who
represents the person. Only if the person provi<;tes information that causes the deputy
to believe that the represented person is asserting a lack of attorney-client relationship
should there be funher conversation. Note that R.P. C. 4 .2 specifically requires
attorneys to use reasonable diligence to ascertain whether a person is represented.
7
See, State
11.
Sanchez, 129 N.J. 261 , 276 (199 1 ); S tate v. Clausell, 121 N.J. 298 , 352
(1990).
10
14
Statements that demonstrate a lack of attorney-client relati onship include, for
e xample, a representation by the person that his attorney is serving the interest of
s ome third party, such as a codefendant , rather than the interests o f the nominal
client. In Lopez, for example, the Assistan~ United States Attorney expla.i ned his
conduct as motivated by a belief that a criminal defendant's attorne y wa s conn ect ed
to a drug ring that was paying his fees and would endanger the defenJar•i.'s ~amily if
the defense attorney learned that the defendant wanted to n egotiate a plea bargain.
In re Abrams, 56 N.J. 2 71 { 197 0), established a clear rule th at an attorney for a
criminal accused must be paid by the accused and not by a third p erson who may be
a target of the criminal case. And In re Garber, 95 N.J. 597 (1984), held that an
attorney may never enter into attorney-client relatiqnships with a criminal defendant
and a witness in the case. Such rel ationships violate, inter alia, R. P. C.- 1 . 7. An
attorney aware of· such an ethical violation .has an obligation to report ii to the
appropriate professional authority. Becaus e the conflict of interest may po se a
substantial threat to the interests of the client and the administration of justice, the
prosecuting attorney must ·call the situation to the attention of the judge having control
over the criminal case. ·
d . The communication is made at the t ime of the arrest of the represe nte~
party and he or she is advised of his or her ri-ghts under M iranda v. Arizona, 384 U.S.
436 (1.966), and y oluntarily and knowingly waives those rights. See, ACPE Docket
No. 23-.9 7, letter to Prosecutor William H. Schmidt dated October 15, 1998, declining
to render an advisory opinion because the propriety of a pre-indictment interview was
a question of constitutional lavJ r ather than the Rules of Professional Conduct. This
exception should not be deemed to apply if the arrest occurs after indictment. See,
State v. Sanchez, 129 N.J.. 261, 277- 78 (1991); compare , State v. Tucker, 13 7 N.J.
259, 291 (1994} (refusing to extend -th e Sanchez holding to pre-indictment cases
when the defend ant initiates the communication).
·
e. The communication is made in the course of an investigation, whether
undercover or overt, of different or ongoing criminal activity or other unlawful conduct.
See, State v. Porter, 210 N.J. Super. 383 (App: Div.. 1986); ACPE Docket No. 23-97,
supra. Such different or ongoing criminal activity or other unlawful conduct . may
include, but is not limited ·to , the following:
·
(1) Different or ongoing criminal activity or other unla~ful conduct that
is separate from or committed after the criminal activity for which the represented
party has been arrested
charged or for which the represented party is a defendant
in a civil taw enforcement proceeding; or
or
(2) Criminal activity that is intended to impede or evade the administration
of justice including, but not limited to, the administration of justice in the proceeding
in which the represented party is a defendant, such as obstruction of . justice,
11
15
II
I
subornation of perjury, jury tampering, murder, assault, intimidation of witnesse·s or
bail jumping.
f. Th e d eputy attorney g ener al in good faith believ es that there may b e
a threat to the safety or life of any person; the purpose of th e communication is to
o btain or provide informa tion to protect against the risk of injury Q'( .deatii; and the
attorney in good faith believes that the communicat ion is neces sary to protect again st
such risk.
2. Procedures for conducting ex parte communications authorized by law.
When a d eputy attorney general communicates, or causes a law enforcemen t
agent or cooperating witness to communicate, with a represen ted person pursuant to
any provision of .this directive, with out the consent of counsel, the followin g
restrictions mu st ·be observed:
a. Deference to attorney-client relationship.
( 1} A d eputy attorney general, or anyone acting at his or her direction,
may not, when communicating with a represented person:
{i) Inquire about information regarding lawful defense strategy or legal
arguments of counsel;
ii) Dispa rage co unsel f or a represented person or otherwi se seek to induce
the p erson to forego representation or t o disregard the adv ice of 1he person's attorney;
or
(iii) Otherwise improperly seek .to disrupt the relationship between th e
represented person and counsel.
b. Notwithstanding paragraph a. , if the deputy attorney general finds that
there is a substantial l·ikelihood of a significant conflict of interest ·between a
re'p resented person and his or her att orney' the deputy should apprise the court hav ing
authority over the matter or criminal cause of the relevant facts. :If it is not possibte
to seek a judicial interpretation prior to the occurrence of an event that will jeopardiz.e
th e safety or important legal rights of a represented person, then the deputy, with prior
written authorization from the appropriate ·supervisor, may apprise the represented
person of the nature of the perceived conflict of interest, unle ss the exigencies of the
situation permit only prior oral authorization, in which case such oral authorization shall
be memorialized in w ritin g as soon thereafter. as possible .
c . Attorney-client me~ting s : A deputy attorney general may not direct
12
16
or cause an undercover law enforcement agent or cooperating witness t~ attend or
participate in lawful attorney-client meetings or communications, except when the
agent or witness is requested to do so by the represented person, defense counsel, or
another person affiliated or associated with the defense, and then, only if reasonably
necessary to protect the safety of the ag~nt or witness or the confidentiality of a
lawful undercover operation. If the agent or witness attends or·· pc;rHdtJates in such
meetings, any information regarding lawful defense strategy or trial preparation
imparted to the agent or witness shall not be communicated to . deputy attorneys
general or to law enforcement agents who are directly participating in the ongoing
investigation or in the prosecution of pending criminal charges, or used in · any other
way to the substantial detriment of the client.
II. Responsibility
forth~
Conduct of Nonlawyer Assistants.
As long as investigations were treated as within the province of the police alone,
the traditionc_tl rule forbidding attorneys from directly contacting represented persons
did not come into conflict ·with legitimate law enforcement activities. Since its
creation by the Criminal Justice Act of 1970, however, the Division of Criminal Justice
has required deputy attorneys .general to play a larger role in preindictment, prearrest .
investigations, as well··as post-indictment investigation and case preparation. Some
of this incr.eased involvement stems from the wider use of law enforcement
t echniques, such .as electronic surveillance, which require the preparation of legal
filings. Also, complex white collar and organized crime investigations necessitate more
intensive engagem ent of lawyers, who present such cases to grand juries. Most
important, greater participation of la wyers at the preindictment stage of law
enforcement ·has been regarded as helpful in assuring that law enforcement
investigations comply with legal and ethical standards.
This extension of the traditional prosecutor's responsibility has been a salutary
development. One by-product, however, has been uncertainty about whether the
traditional professional limitation on attorney contacts with represented parties should
be viewed as a restriction upon prosecuto rs engaged in investigations ·and, by
extension, the agents with whom they work. The applicability of R.P.C. 4 •.2 to law
enforcement officers working in conjunction with deputy attorneys general will usually
not present unmanageable complications, since a criminal cause does not becom·e a
"matter" within the intendment of the rule until an indictment is returned qr a
complaint is filed. See section I. C., supra at 7.
Any uncertainty concerning the effect of R.P.C. 4.2 upon law enforcement
officers' contact with represented person s has largely been resolved, at least by
implication, by dicta in State v. Sanchez, 129 N.J. 261, 277-78 (1991 ). In that case,
two detectives employed by a city police department interviewed a person after his
indictment. The Supreme Court wrote:
13
17
The Rules o f Professional Conducf(RPC) prohibit a prosecu tor from seeking "to obtain from an unrepresented accused
a waiver of important pretnal rights * • *." RPC 3.8. They
also prevent a lawyer from communicating " about the
subject of t he representati on with a p arty the lawyer knows
to b e represented by another lawyer in the matter~.. uhiess
the lawyer has the consent of th e other lawyer or is
authorized by law to do so. " RPC 4.2 . The implication of
these rule s is th at after the return of an indictm ent, prosecutors and their representatives should not initiate conversations w ith an uncounseled defendant. That a defendant is
indigent and awaiting assignment of counsel does not free
the prosecutor to proceed · with an otherwise-prohibited
interrogation. As Professor Gillers states, the identity of the
lawyer for an indigent defenda_nt is known : it will be the
Public Defender or designated counsel. Stephen Gillers,
Regulation of lawyers 92 (1992). Conduct of an interview
with a defendant by an investigating officer may not
insulate the prosecutor. Even if not accountable for the
unauthorized conduct of an investigating officer, a prosecu tor should not ignore such conduct. Rule 3.8(e) of the
American Bar Association's Model Rules of Professional
Conduct (1992), although not part of RPC 3.8, provides
that a prosecutor in a c riminal case shall (e] xercise reasonable care .to prevent investigators, law enforcement personnel, employees or other persons assisting or associated w ith
the prosecutor in a criminal case from making an e xtrajudicial statement that the prosecutor would be prohibited from
making under Rule 3.6
Concerning a pro secutor's duty not to obtain waivers ·unless
they are knowing, voluntary, and intelligent, Professor
Hazard writes that Rule [8 .4(ajj "makes it clear that a ·
prosecutor may not e scape this duty by dire.cting or permitting others to act in his stead. That comment implies a
duty to take affirmative steps to assure· that the police do
not coerce a defendant into making a confession or waiving
important rights ." Geoffrey C. Hazard, Jr. & W. William
Hodes, The Law of lawyering: A Handbook on the Model
Rules of Professional Conduct 696 ( 1992). Even if unprofes$ional conduct does not compel exclusion of
illegally-obtained evidence. it c an constitute an unfair
practice that colors the determination whether a waiver of
14
18
a right of counsel has been made knowingly and intelligently.
R.P. C. 5.3 (a) provides that "every lawyer or organization ... shall adopt and
maintain reasonable efforts to ensur~ that the conduct of nonlawyers retained or
employed by the lawyer, law firm or organization is compatibi.:: \•vi\h the professio nal
obligations of the lawyer." Subsection, (b) of that rule further requires that a lawyer
having direct supervisory authority over a nonlawyer shalf make reasonable efforts to
ensure that the nonlawyer's conduct is compatible with the professional obligations
of the lawyer. · The rule concludes by providing:
(c) a lawyer shall be responsible for conduct of such a
person that would be a violation of the rules of Professional
Conduct if engaged in by a lawyer if:
( 1 I the lawyer orders or ratifies the conduct involved;
( 2) the lawyer has direct supe.rvisory authority over the
person and knows of the conduct at a time when its
consequences can be avoided or mitigated but fails to take
reasonable remedial action; or
(3) the lawy.er has failed to make reasonabl~ investigation
of circumstances that would disclose past instances of
conduct by the nonlawyer incompatible with the professional obligations of a iawyer, which evidence a propensity
for such conduct.
·.,
Also note that R. P. C. 8. 4 prohibits an attorney from accomplishing through the acts
of another person that which the lawyer would not be permitted to do himself or
herself.
15
19
IN THE MATTER OF J. DAVID ALCANTARA, AN ATTORNEY AT LAW.
D-13 September Term 1995
SUPREME COURT OF NEW JERSEY
144 N.J. 257; 676 A.2d 1030; 1995 N.J. LEXIS 1364
September 27, 1995, Argued
December 1, 1995, Decided
PRIOR HISTORY:
[***1] On an Order to show
cause why respondent should not be disbarred or
otherwise disciplined.
SYLLABUS
(This syllabus is not part of the opinion of the Court.
It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed
nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not
have been summarized).
IN THE MATTER OF J. DAVID ALCANTARA, An
Attorney at Law (D-13)
Argued September 27, 1995 -- Decided December 1,
1995
PER CURIAM
J. David Alcantara was admitted to practice law in
New Jersey in 1988 and practices law in Ventnor, New
Jersey. In 1992, Alcantara represented Wilfredo
Carmona in connection with an indictment for thirddegree theft of a church bell. Carmona elected to go to
trial while three co-defendants entered guilty pleas. The
codefendants agreed to testify for the State against
Carmona. It is alleged that Alcantara engaged in
improper and unethical conduct by attempting to
persuade two of the co-defendants not to testify against
Carmona.
Lonnie Campbell and Johnny Nieves, co-defendants
of Carmona, were each represented by an attorney. As
part of plea agreements, [***2] Campbell and Nieves
pled guilty to third-degree theft and agreed to testify for
the State at Carmona's trial. In return, the State agreed to
recommend noncustodial terms.
On March 20, 1992, Campbell and Nieves appeared
in court for sentencing. Because they had not yet testified
in the Carmona trial, Atlantic County Assistant
Prosecutor Housel requested and was granted a
postponement of the sentencing. Shortly thereafter,
Housel discovered that Alcantara had improper
conversations with Campbell and Nieves after the court
appearance. Campbell told Housel that Alcantara
informed both he and Nieves that the prosecution
intended to abandon the plea agreement once they
testified against Carmona and that they both should take
the Fifth Amendment and not testify against Carmona.
Campbell further stated that Alcantara gave them
business cards and asked them to make appointments to
come in and discuss the matter. The testimony of Nieves
was consistent with that of Campbell. In addition, the
attorneys for Nieves and Campbell testified that
Alcantara did not request permission to speak with their
clients.
According to Housel, several weeks after March 20,
1992, Alcantara turned over to the Prosecutor's [***3]
Office a video tape recording that showed Campbell and
Nieves engaged in an alleged drug transaction. Campbell
and Nieves were prosecuted and convicted for
distribution of a controlled dangerous substance (CDS).
The theft charge against Carmona eventually was
dismissed because the prosecutor was unwilling to forego
prosecuting the CDS offenses in order to obtain
favorable testimony from Campbell and Nieves in the
theft case against Carmona.
Alcantara testified that he was approached by a
hispanic male while standing in the hallway outside the
courtroom and was asked by the man if he was a lawyer.
The man told Alcantara that he had been charged with
theft of a bell. Alcantara, realizing that this man was a
co-defendant of Carmona, identified himself as
Carmona's attorney. Another man wearing a green jacket
also approached, but said nothing. Alcantara stated that
he asked the hispanic man if he had a lawyer and that the
man told him yes but that he was unhappy with his
lawyer. Alcantara gave both men a business card and told
them to contact their attorney so they could develop a
united defense. Alcantara stated that this discussion asted
less than sixty seconds. Alcantara further testified [***4]
that Carmona gave him the video tape recording of the
drug transaction and that, approximately two to three
weeks after March 20, 1992, he delivered the video tape
to the Prosecutor's Office.
The District I Ethics Committee (DEC) concluded
that the evidence was clear and convincing that
Alcantara's testimony was not credible and that the
testimony of Campbell and Nieves was credible. The
DEC found that Alcantara committed unethical conduct
20
by knowingly disobeying an obligation under the rules of
a tribunal (RPC 3.4(c)); requesting a person, other than a
client to refrain from voluntarily giving relevant
information to another party (RPC 3.4(f));
communicating with co-defendants who Alcantara knew
or should have known were represented by other
attorneys (RPC 4.2); violating the rules of professional
conduct (RPC 8.4(a)); and engaging in conduct
prejudicial to the administration of justice (RPC 8.4(d)).
The DEC recommended public discipline for those
violations.
The Disciplinary Review Board (DRB) found that
the testimony of the co-defendants was not credible and
recommended dismissal of the ethics complaint. The
DRB also concluded that after the co-defendants entered
[***5] guilty pleas they were no longer parties to the
criminal proceedings and Alcantara was, therefore,
permitted to speak to them as witnesses without
permission from their attorneys.
HELD: J. David Alcantara is reprimanded for
violating Rules of Professional Conduct 3.4(c), 3.4(f),
4.2, 8.4(a), and 8.4(b).
1. The DEC had the opportunity to observe the
witnesses' demeanor and noted the consistency between
their testimony and their prior statements. In addition, the
evidence concerning the video tape corroborates the codefendants' testimony and contradicts Alcantara's
testimony. Considered in that light, there is a high degree
of circumstantial probability of trustworthiness in the
testimony of Campbell and Nieves. (pp. 8-9)
2. The testimony of the attorneys and of Campbell
and Nieves clearly and convincingly established that
Alcantara spoke to the co-defendants with the knowledge
that they were represented by counsel and without the
permission of counsel. The DRB's conclusion that as
witnesses, the co-defendants could be freely contacted by
Alcantara is erroneous as a matter of law. When a codefendant enters a guilty plea with a lenient sentence
recommendation conditioned [***6]
on testifying
against a co-defendant, the testifying co-defendant is an
adversary of the co-defendant who has elected to stand
trial. Thus, on March 20, 1992, Nieves and Campbell
were adverse-party witnesses. Accordingly, it has been
clearly and convincingly established that Alcantara
violated RPC 4.2. (pp. 8-11)
3. The DRB's finding that there was no violation of
RPC 3.4(f) because Alcantara's advice to Campbell and
Nieves not to testily favorably for the State was
beneficial to them is erroneous as a matter of law. The
rule provides for the conjunctive, and the co-defendants
were not relatives or employees or other agents of
Alcantara's client. Moreover, because the indictment was
still pending against Campbell and Nieves and the lenient
sentence recommendation depended on their testifying
truthfully against Carmona, Alcantara could not
reasonably have believed that advising co-defendants to
take the Fifth Amendment or not to testify truthfully
would benefit them. The violation of RPC 3.4(f) has been
established by clear and convincing evidence. (pp. 11-12)
4. An attorney who violates both RPC 4.2 by
speaking to another attorney's client without permission
[***7] and RPC 3.4(f) by requesting that person to
refrain from giving testimony favorable to the State, also
violates RPC 3.4(c), RPC 8.4(a), and RPC 8.4(d). (p. 12)
5. Alcantara's unethical behavior was serious.
However, it should be noted that: the DRB itself did not
fully appreciate that Alcantara's conduct was unethical
and clearly violated RPC 4.2; the Court has never
previously been required to explain the status of a
defendant in a criminal prosecution as a "party" to whom
access is not available as it is to non-party witnesses; and
the Court has never addressed the appropriate discipline
to be imposed on an attorney who violates RPC 4.2.
Those considerations require that full weight be accorded
to mitigating considerations. (pp. 12-13)
6. Alcantara regrets his conduct; this was an isolated
incident on an otherwise unblemished professional
record; and he has also performed pro bono legal
services in the past. Therefore, under the circumstances,
Alcantara is reprimanded for his unethical conduct. But
for the fact that this is the Court's first interpretation and
application of RPC 4.2, Alcantara's discipline would
have been greater than now [***8] imposed by the
Court. Members of the bar are cautioned that in the
future the Court will ordinarily suspend an attorney for
the type of violation of RPC 4.2 that occurred in this
case. (p. 14)
So Ordered.
Chief Justice WILENTZ and Justices HANDLER,
POLLOCK, O'HERN, GARIBALDI, STEIN, and
COLEMAN join in this opinion.
COUNSEL: Thomas J. McCormick, Assistant Ethics
Counsel, argued the cause on behalf of the Office of
Attorney Ethics.
J. David Alcantara argued the cause Pro se.
JUDGES: Chief Justice WILENTZ, and Justices
HANDLER, POLLOCK, O'HERN, GARIBALDI,
STEIN and COLEMAN.
OPINION
[*259] [**1031] PER CURIAM.
Respondent Jose David Alcantara was admitted to
practice law in New Jersey in 1988 and is engaged in the
practice of law in Ventnor, New Jersey. He has no prior
ethics history.
These proceedings involve respondent's conduct
during his appearance at the Atlantic County Criminal
21
Court House in Mays Landing, New Jersey, on March
20, 1992.
I
Respondent represented Wilfredo (Junior) Carmona,
who, along with three co-defendants, were indicted for
third-degree theft of a church bell. Carmona elected a
trial by jury while the three co-defendants entered guilty
pleas and agreed [***9] to testify for the State against
Carmona. Thereafter, respondent is alleged to have
engaged in improper conduct when he attempted to
persuade two of the co-defendants not to testify against
Carmona.
The alleged improper conduct involving witnesses in
a pending criminal case caused a formal ethics complaint
to be filed, in which [*260] the following violations of
the Rules of Professional Conduct (RPC) were alleged:
RPC 3.4(a) (unlawfully obstructing another party's
access to evidence); RPC 3.4(b) (counseling or assisting
a witness to testify falsely); RPC 3.4(c) (knowingly
disobeying an obligation under the rules of a tribunal);
RPC 3.4(f) (requesting a person other than a client to
refrain from voluntarily giving relevant information to
another party); RPC 4.2 (communicating about the
subject of the representation with a party the lawyer
knows to be represented by another lawyer in the matter);
RPC 8.4(a) (violating or attempting to violate the
[RPC]); RPC 8.4(b) (committing a criminal act that
reflects adversely on the lawyer's honesty,
trustworthiness or fitness as a lawyer); RPC 8.4(c)
(engaging in conduct involving dishonesty, fraud, deceit
or misrepresentation);
[***10]
and RPC 8.4(d)
(engaging in conduct prejudicial to the administration of
justice).
The District I Ethics Committee (DEC) found that
respondent committed unethical conduct by knowingly
disobeying an obligation under the rules of a tribunal
(RPC 3.4(c)); requesting a person, other than a client,
torefrain from voluntarily giving relevant information to
another party (RPC 3.4(f)); communicating with codefendants whom respondent knew or should have
known were represented by other attorneys (RPC 4.2);
violating the rules of professional conduct (RPC 8.4(a));
and engaging in conduct prejudicial to the administration
of justice (RPC 8.4(d)).
The DEC recommended public discipline for those
violations. The Disciplinary Review Board (DRB) found
the testimony of the co-defendants was not credible and
recommended dismissal of the complaint. The DRB also
concluded that after the co-defendants entered guilty
pleas they were no longer parties to the criminal
proceedings, and respondent was therefore permitted to
speak to them as witnesses without permission from their
attorneys.
II
Lonnie Campbell and Johnny Nieves, co-defendants
of Carmona, were represented by Brad [***11]
Wertheimer, Esq. and Bernard [*261] Sypniewski, Esq.,
respectively. They negotiated plea agreements with the
State in which Campbell and Nieves were required to
plead guilty to third-degree theft and testify truthfully for
the State in the trial of Carmona. For its part of the plea
agreement, the State agreed to recommend noncustodial
sentences.
[**1032] On March 20, 1992, Campbell and
Nieves appeared at the Atlantic County Criminal Court
for sentencing by Judge Hornstine. Because Campbell
and Nieves had not yet testified in the Carmona trial,
Assistant Prosecutor Theodore Housel requested Judge
Hornstine to postpone sentencing Campbell and Nieves.
In the presence of counsel for Campbell and Nieves, the
judge granted the adjournment.
It is alleged that respondent engaged in improper
conversations with Campbell and Nieves after the
adjournment.
Housel learned of the improper conversations when
he spoke to Campbell and Nieves at the courthouse later
that day to prepare for the impending trial of Carmona.
Housel testified that he obtained permission from
Wertheimer and Sypniewski to interview Campbell and
Nieves for the purpose of preparing them to testify
against Carmona. After the adjournment motion [***12]
was granted, Housel approached Campbell and Nieves
outside the courtroom. Housel testified that as he
approached Campbell and Nieves, "Campbell stated, 'Mr.
Alcantara came up to me and told me that the reason that
you're postponing the sentencing is so that I can testify in
the case and you can . . . stick it to me afterwards' with
respect to the plea agreement." According to Housel,
Campbell stated he was told by Alcantara that the
prosecution intended to abandon the plea agreement once
Campbell and Nieves testified against Carmona.
Housel returned to Judge Hornstine's courtroom and
requested the court to bar Alcantara from engaging in
further communication with Campbell and Nieves.
Wertheimer also sought a similar order. Judge Hornstine
granted both applications.
[*262] Housel also testified that between two and
five weeks following the March 20, 1992 incident,
Alcantara turned over to the prosecutor's office a video
tape recording that showed Campbell and Nieves
engaging in an alleged drug transaction.
Campbell and Nieves were prosecuted for
distribution of a controlled dangerous substance (CDS).
The prosecutor stated that the video tape was not useful
in prosecuting either Campbell [***13] or Nieves
because the prosecution could not corroborate that the
transaction recorded on the video, in fact, involved a
CDS. Nonetheless, Campbell and Nieves were eventually
convicted of drug offenses and incarcerated. The theft
charge against Carmona was dismissed ultimately
22
because the prosecutor was unwilling to forego
prosecuting the CDS offenses in order to obtain
favorable testimony from Campbell and Nieves in the
theft case against Carmona.
both men his business cards and told them to contact
their attorneys so that they could develop a united
defense. Respondent stated that this discussion lasted
fewer than sixty seconds.
The testimony of Campbell is consistent with that of
Nieves. Campbell testified that following the sentencing
adjournment, as he was leaving the courtroom, he saw
Nieves speaking to a man who introduced himself as
Alcantara and stated that he was representing Carmona in
the stolen bell case. Alcantara told Campbell and Nieves
to take the Fifth Amendment and not testify against
Carmona.
Respondent further testified that Carmona gave him
a video tape recording that depicted Campbell and
Nieves engaging in a drug transaction. Between two and
three weeks after March 20, 1992, respondent delivered
that video tape to the Atlantic County Prosecutor's
Office.
Nieves testified that,
[Alcantara] started asking me questions
about the case, basically, statements about
testifying, not testifying against his client .
. . Junior Carmona. . . . He told me not--he
told me to plead the fifth and not testify
against them. If they wanted, they could
really stick it to us.
Campbell and Nieves stated that Alcantara [***14]
threatened that Carmona could incriminate them in other
matters because Carmona's cousin had made a video tape
recording that contained images of Campbell and Nieves
engaging in a drug-related transaction. Nieves stated,
"[Alcantara] told us that if Junior Carmona wanted to, he
could really grow horns and be a devil."
Wertheimer testified that respondent did not request
Wertheimer's permission to speak with Campbell.
Wertheimer also stated that he was unaware of the
conversation between Alcantara, Campbell and Nieves as
it was taking place. After the incident Wertheimer
confronted respondent who admitted speaking with
Campbell only for the purpose of introducing himself.
Sypniewski testified that Nieves informed him that
respondent [***16] [*264] asked Nieves not to testify
for the State and warned him that the prosecutor was
trying to "stick it to [Nieves]."
The DEC concluded that the "evidence convinces us
clearly and convincingly" that Alcantara's testimony was
not credible although the testimony of Campbell and
Nieves was credible. In assessing the credibility of
Campbell and Nieves, the DEC placed substantial
reliance on the following factors:
(1) Campbell's and Nieves' versions of
the incident were consistent with one
another;
Campbell and Nieves stated that Alcantara gave his
business cards to each, and asked them to make
appointments to come in [*263] and discuss the matter.
Nieves testified that Alcantara terminated the
conversation by stating, in effect, that their conversation
never took place.
(2) Nieves' testimony regarding the
March 20, 1992 incident was consistent
with the version he told to his lawyer
immediately after the incident occurred;
(3) the testimony of Campbell and
Nieves regarding the video tape was
corroborated by Alcantara's actual
production of the video tape; and
Within several minutes after respondent had spoken
to Campbell and Nieves, Detective Armstrong of the
Atlantic County Prosecutor's Office interviewed
Campbell with regard to his conversation with Alcantara.
The DEC found that Campbell's statement to [**1033]
Armstrong was consistent with his testimony before the
DEC.
Respondent testified that as he was standing in the
corridor outside the courtroom, an hispanic man
approached him and asked if Alcantara was a lawyer.
This man told Alcantara that he had been charged with
theft of a bell. At this point, Alcantara realized that the
hispanic man was a co-defendant [***15] of his client,
Carmona. Respondent stated that he identified himself as
the attorney for Carmona. Another man wearing a green
jacket approached respondent and said nothing.
Respondent stated that he asked the hispanic man if he
had a lawyer, and the man responded that he had a
lawyer with whom he was unhappy. Respondent gave
(4) there was no way, other than
through Alcantara, that either Campbell or
Nieves could have obtained information
regarding the video tape.
The DRB, on the other hand, found that although
"there is sufficient evidence in the record to find that the
witnesses indeed had a conversation with respondent," it
disagreed "with the DEC findings as to the substance and
relevance of the [***17] conversation." The DRB found
the testimony of "Campbell and Nieves was not credible"
without explaining why.
III
Our
independent
examination
of
the
record
23
persuades us to conclude that the testimony of Campbell
and Nieves was credible. The DEC observed the
witnesses' demeanor and noted the consistency between
the testimony of Campbell and Nieves and their prior
statements to their attorneys and Detective Armstrong.
"Consistency of testimony, both internally and between
witnesses, is an important indicator of truthful
testimony." In re Seaman, 133 N.J. 67, 88, 627 A.2d 106
(1993). In addition, the evidence concerning the video
tape corroborates their testimony and contradicts
respondent's testimony. Considered in that light, we find
a high degree of circumstantial probability of
trustworthiness in the testimony of Campbell and Nieves.
[*265] The DRB also concluded that even if the
witnesses against respondent were credible, the charges
should nonetheless be dismissed. It reasoned:
RPC 4.2 states that "[i]n representing a
client, a lawyer shall not communicate
about the subject of the representation
with a party the lawyer knows to be
represented by another lawyer in [***18]
the matter, unless the lawyer has the
consent of the [**1034] other lawyer or is
authorized to do so." The Board
concluded that the word "party" is a term
of art, which specifically denotes
"adversaries"--people with opposing
interests. In the "stolen bell matter,"
Campbell and Nieves were no longer
parties or co-defendants in the matter;
they were only witnesses. As witnesses,
they had the right to talk to respondent
without their attorneys being present, if
they so desired.
RPC 3.4(f) states that a lawyer shall
not request a person other than a client to
refrain from voluntarily giving relevant
information unless the lawyer reasonably
believes that the person's interests will not
be adversely affected by refraining from
giving such information. The Board
determined that respondent's advice to the
witnesses not to testify would have
benefitted the witnesses' interests, rather
than adversely affect them. As with
Carmona, without the witnesses' plea
agreement and with no other evidence
available to the prosecutor, the prosecutor
would have had to dismiss the charges
against Campbell and Nieves.
Wertheimer testified that he saw respondent in the
courtroom at the time the adjournment [***19] of the
sentencing motions was being argued before Judge
Hornstine. He stated that respondent never requested his
permission to speak to Campbell. Similarly, Sypniewski
testified that respondent never asked for his permission to
speak to Nieves. The testimony of the attorneys and that
of Campbell and Nieves clearly and convincingly
establish that respondent spoke to Campbell and Nieves
with the knowledge that they were represented by
counsel and without their attorneys' permission.
The controlling rule provides:
In representing a client, a lawyer shall
not communicate about the subject of the
representation with a party the lawyer
knows to be represented by another
lawyer in the matter, unless the lawyer has
the consent of the other lawyer or is
authorized by law to do so.
[RPC 4.2.]
The word "party" denotes "adversaries." The DRB found
that although Campbell and Nieves were co-defendants
of Carmona, they were no longer adversaries but were
simply witnesses because [*266] they had entered pleas
of guilty. The DRB concluded that as witnesses, they
could be freely contacted by respondent. This conclusion
is erroneous as a matter of law.
When a co-defendant enters [***20] a guilty plea
with a lenient sentence recommendation conditioned on
testifying against a co-defendant such as Carmona, the
testifying co-defendant is an adversary of the codefendant who has elected to stand trial. Although
Campbell, Nieves and Carmona remained co-defendants
in the caption on the indictment, when Campbell and
Nieves agreed to testify against Carmona, they became
adversaries of Carmona. Thus, on March 20, their status
was much more significant than that of mere witnesses;
they were adverse-party witnesses. Accordingly, it has
been clearly and convincingly established that
respondent violated RPC 4.2.
In addition, RPC 3.4(f) provides that a lawyer shall
not "request a person other than a client to refrain from
voluntarily giving relevant information to another party
unless: (1) the person is a relative or an employee or
other agent of a client; and (2) the lawyer reasonably
believes that the person's interests will not be adversely
affected by refraining from giving such information."
The DRB found no violation of this rule because
respondent's advice to Campbell and Nieves not to testify
favorably for the State was beneficial to them. This
conclusion is also [***21] erroneous as a matter of law.
To begin with, the rule speaks in the conjunctive.
Neither Campbell nor Nieves was a "relative or an
employee or other agent" of respondent's client. Because
the indictment was still pending against Campbell and
24
Nieves and the lenient sentence recommendation
depended on their testifying truthfully against Carmona,
respondent could not reasonably have believed that
advising Campbell and Nieves to take the Fifth
Amendment or not to testify truthfully would benefit
them. Significantly, Campbell and Nieves were not
sentenced on March 20, because the prosecutor [**1035]
wanted their favorable testimony as a precondition to
requesting lenient sentences. If Campbell and Nieves
testified [*267] inconsistently with their statements to
the prosecutor, then the prosecutor would have been free
not to make a lenient recommendation at sentencing. In
the plea bargaining process, it would be difficult to
conceive of a strategy more adverse to a defendant's or
co-defendant's interest than to leave a court free to
impose a sentence without a recommendation of
leniency. Consequently, we find that a violation of RPC
3.4(f) has been established by clear and convincing
evidence.
It follows [***22] that an attorney who violates
RPC 4.2 by speaking to another attorney's client without
permission, and violates RPC 3.4(f) by requesting that
person to refrain from giving testimony favorable tothe
State, also violates RPC 3.4(c), RPC 8.4(a), and RPC
8.4(d).
IV
Having found respondent guilty of unethical
conduct, we must now determine what discipline to
impose. Our statements in prior cases inform our present
decision:
In all disciplinary matters, public
confidence in the bar requires the
acknowledgment of the ethical infractions
which must be sanctioned in a manner
commensurate with the seriousness of the
transgressions. The purpose of discipline,
however, is not to punish the attorney, but
to protect the public from the attorney
who does not meet the standards of
responsibility required of every member
of the profession. In re Templeton, 99 N.J.
365, 374, [492 A.2d 1001] (1985). The
quantum of discipline must accord with
the seriousness of the misconduct in light
of all relevant circumstances. In re
Nigohosian, 88 N.J. 308, 315, [442 A.2d
1007] (1982). Mitigating factors are,
therefore, relevant and may be considered.
In re Hughes, 90 [***23] N.J. 32, 36,
[446 A.2d 1208] (1982).[In re Kasdan,
115 N.J. 472, 489, 559 A.2d 411 (1989).]
Respondent's unethical behavior was unquestionably
serious. In attempting to protect his client's interest, he
crossed over the line from vigorous defense advocacy
and came perilously close to bringing about a perversion
of justice.
Nevertheless, it is fair to note that the DRB itself did
not fully appreciate that under the circumstances
respondent's conduct was unethical and clearly violated
RPC 4.2. Further, we acknowledge that we have never
previously been required to explain the status [*268] of
a defendant in a criminal prosecution as a "party" to
whom access is not available as it is to non-party
witnesses. In addition, we have never addressed the
appropriate discipline to be imposed on an attorney who
violates RPC 4.2. Thus, those considerations impel us to
accord full weight to mitigating considerations.
In this context, we sense from the record that
respondent regrets the conduct. Respondent's conduct
was an isolated incident on an otherwise unblemished
professional record. He has also performed pro bono
legal services in the past. We are, therefore, satisfied
[***24]
under the circumstances to reprimand
respondent for his ethical failing. But for the fact that this
is our first interpretation and application of RPC 4.2,
respondent's discipline would be greater than the public
reprimand recommended by the Office of Attorney
Ethics and now imposed by the Court. "We caution
members of the bar, however, that the Court in the future
will ordinarily suspend an attorney" for the type of
violation of RPC 4.2 that occurred in this case. In re
Magid, 139 N.J. 449, 455, 655 A.2d 916 (1995); In re
Principato, 139 N.J. 456, 463, 655 A.2d 920 (1995).
Respondent shall reimburse the Disciplinary
Oversight Committee for appropriate administrative
costs.
So Ordered.
[**1036] ORDER
It is ORDERED that J. DAVID ALCANTARA of
VENTNOR, who was admitted to the bar of this State in
1988, is hereby reprimanded; and it is further
[*269] ORDERED that the entire record of this
matter be made a permanent part of respondent's file as
an attorney at law of this State; and it is further
ORDERED that respondent reimburse the
Disciplinary Oversight Committee [***25]
for
appropriate administrative costs incurred in the
prosecution of this matter.
WITNESS, the Honorable Robert N. Wilentz, Chief
Justice, at Trenton, this 1st day of December, 1995.
25
RPC 3.4. Fairness to opposing party and counsel
A lawyer shall not:
(a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy
or conceal a document or other material having potential evidentiary value, or counsel or
assist another person to do any such act;
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an
inducement to a witness that is prohibited by law;
(c) knowingly disobey an obligation under the rules of a tribunal except for an open
refusal based on an assertion that no valid obligation exists;
(d) in pretrial procedure make frivolous discovery requests or fail to make reasonably
diligent efforts to comply with legally proper discovery requests by an opposing party;
(e) in trial, allude to any matter that the lawyer does not reasonably believe is
relevant or that will not be supported by admissible evidence, assert personal knowledge of
facts in issue except when testifying as a witness, or state a personal opinion as to the
justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt
or innocence of an accused; or
(f) request a person other than a client to refrain from voluntarily giving relevant
information to another party unless:
(1) the person is a relative or an employee or other agent of a client; and
(2) the lawyer reasonably believes that the person's interests will not be adversely
affected by refraining from giving such information.
(g) present, participate in presenting, or threaten to present criminal charges to obtain
an improper advantage in a civil matter.
HISTORY: Adopted July 12, 1984, to be effective September 10, 1984; paragraph (g) adopted July
18, 1990, to be effective September 4, 1990.
26
STATE OF NEW JERSEY v. MONIQUE MCCOY, MELODY D. GRANT,
XAVIER S. BROWN
IND. NO. 1715-10-91
SUPERIOR COURT OF NEW JERSEY, LAW DIVISION (CRIMINAL),
MIDDLESEX COUNTY
261 N.J. Super. 202; 618 A.2d 384; 1992 N.J. Super. LEXIS 451
October 5, 1992, Decided
SUBSEQUENT HISTORY:
1992, Approved for Publication.
[***1] December 2,
COUNSEL: Mark Cassidy, Assistant Prosecutor for the
State.
Allan Marain, Assistant Deputy Public Defender, for
defendant Monique McCoy.
Ingrid Yurchenco, Assistant Deputy Public Defender, for
defendant Xavier S. Brown.
JUDGES: BERMAN, J.S.C.
PERSON
COUNSEL.
REPRESENTED
BY
In representing a client, a
lawyer shall not
communicate about the
subject
of
the
representation with a party
the lawyer knows to be
represented by another
lawyer in the matter, unless
the lawyer has the consent
of the other lawyer or is
authorized by law to do so.
OPINION BY: BERMAN
OPINION
[*203] [**384] Hypothesize the following: three
individuals (Alpha, Bravo, and Charlie) 1 are arrested and
charged with possession of a controlled dangerous
substance seized from an automobile in [*204] which
all three were riding. Bravo, in the absence of her
attorney, gives a statement to Alpha's attorney,
exculpating Alpha, but implicating herself.
1 Fictitious names for the hypothetical, simply
adopted from the military phonetic alphabet.
Alpha's attorney, in an attempt to secure a favorable
plea bargain for her, provides the statement to the County
Prosecutor who now seeks to use it against Bravo. The
issue, of some novelty, is as follows: may the State
utilize the statement of a defendant taken in violation of
the Rules of Professional Conduct? [***2] 2 The rules
that this issue implicates are as follows:
MODEL CODE OF PROFESSIONAL
RESPONSIBILITY DR-7-104(A)(1)
[**385]
MODEL CODE OF
PROFESSIONAL RESPONSIBILITY
DR-7-104(A)(2)
M O D E L
R U L E S
O F
PROFESSIONAL CONDUCT Rule 4.3
D E A L I N G
W I T H
UNREPRESENTED PERSON.
In dealing on behalf of a
client with a person who is
not represented by counsel,
a lawyer shall not state or
imply that the lawyer is
disinterested. When the
lawyer knows or
reasonably should know
that the unrepresented
person misunderstands the
lawyers' role in the matter,
the lawyer shall make
reasonable efforts to
c o r r e c t
t h e
misunderstanding.
M O D E L
R U L E S
O F
PROFESSIONAL CONDUCT Rule 4.2
COMMUNICATION
WITH
27
2 This court is not ruling that Alpha's
attorney breached the Rules of
Professional Conduct, but assuming it for
the purposes of this opinion.
[***3]
Defendant Monique McCoy
("Bravo" hereinabove) argues that the statement
obtained by co-defendant's counsel is violative of
either R.P.C. 4.2 or R.P.C. 4.3 and therefore
should be suppressed. Assuming arguendo that
defense counsel for Melody Grant ("Alpha"
hereinabove) did violate a disciplinary rule,
defendant's motion to suppress the statement must
nonetheless be denied.
When evidence is obtained in violation of the
Rules of Professional Conduct, the decisional law
that is of guidance in this and other jurisdictions
dictates in favor of admission. State v. CIBAGEIGY Corp., 247 N.J.Super. 314, 589 A.2d 180
[*205] (App.Div.1991); State v. Riley, 216
N.J.Super. 383, 523 A.2d 1089 (App.Div.1987);
State v. Porter, 210 N.J.Super. 383, 510 A.2d 49
(App.Div.1986); State v. Darby, 211 N.J.Super.
367, 511 A.2d 1222 (App.Div.1986); Barbetta v.
Sciaraffa, 135 N.J.Super. 488, 343 A.2d 770
(App.Div.1975); Suarez v. State, 481 So.2d 1201
(Fla.1985). [***4]
In Barbetta v. Sciaraffa, supra, 135
N.J.Super. at 495, 343 A.2d 770 the eminently
respected Judge Kolovsky went so far as to view
an attorney's failure to testify, even though
subjecting him to disciplinary proceedings, as
reversible error.
In State v. Riley, supra, 216 N.J.Super. at
390, 523 A.2d 1089, one of the more recent cases
dealing with exclusion based on ethical
violations, the court noted,
In general, if a lawyer violates the rules
he may subject himself to disciplinary
proceedings but we know of no per se bar
to the admissibility of information he has
learned based upon the ethical violation.
No case that we have found either in New
Jersey or elsewhere has enunciated such a
general rule. On the contrary, it has been
held that evidence obtained in violation of
applicable disciplinary rules is indeed
admissible.
Riley dealt with R. 1:16-1 and the defendant's
attorney contact with a juror regarding his personal bias,
after entry of a guilty verdict. The statement was held
admissible at hearing on Riley's petition for post
conviction relief.
Looking [***5] beyond New Jersey's borders, in Suarez
v. State, supra, 481 So.2d at 1206, the Florida Supreme
Court concluded that, "violation of the disciplinary rule
alone does not require suppression of statements
resulting from such violation". They concurred with the
Michigan Supreme Court in their determination as to
whether a voluntary and knowing statement must be
suppressed solely because of a disciplinary rule violation.
Citing to People v. Green, 405 Mich. 273, 274 N.W.2d
448 (1979), defendant asserted his rights had been
violated and unless his statement was suppressed, no
effective remedy would redress this wrong. The Court in
Suarez relying on Green opined,
"This argument rests upon a basic
misconception of the Code of Professional
Responsibility. The provisions of the
code are not constitutional or statutory
[*206] rights guaranteed to individual
persons. They are instead self-imposed
internal regulations prescribing the
standards of conduct for members of the
bar. Although it is true that the principal
purpose of many provisions is the
protection of the public, the remedy
[***6] for a violation has traditionally
been internal bar disciplinary action
against the offending attorney. The
sanctions available are by no means
trivial. The attorney faces permanent
disbarment. . . . The admissibility of
evidence in a court of law, on the other
hand, is normally determined by reference
to relevant constitutional and [**386]
statutory provisions, applicable court rules
and pertinent common-law doctrines.
Codes of professional conduct play no
part in such decisions." Suarez, supra, 481
So.2d at 1206.
The Suarez Court characterized the suppression
remedy as "overkill" and concluded a more appropriate
remedy would be Bar disciplinary action. In Suarez, the
court states,
[D]isciplinary action directed against
the offending attorney would be a more
effective deterrent than the indirect
sanction of the exclusionary rule. Id. at
1207.
ABSENT STATE ACTION,
CONSTITUTIONAL GROUNDS ARE
A N D
N O T
I N V O K E D
28
EXCLUSIONARY RULE TO
SUPPRESS STATEMENT WOULD
NOT APPLY.
"The Fourteenth Amendment, which prohibits the
states from denying federal constitutional rights and
which guarantees due process, applies to [***7] acts of
the states, not to acts of private persons or entities."
Rendell-Baker v. Kohn, 457 U.S. 830, 837, 102 S.Ct.
2764, 2769, 73 L.Ed.2d 418 (1982).
Private persons are provided far more leeway in their
attempts to procure evidence. What may be admissible
by a private party would be excluded under the Due
Process Clause if state action was involved.
The outer boundaries of private action are addressed
by Connecticut Supreme Court Justice Hull:
The most outrageous behavior by a
private party seeking to secure evidence
against a defendant does not make that
evidence inadmissible under the Due
Process Clause.
[State v. Holliman, 214 Conn. 38, 570
A.2d 680 (1990) citing to Colorado v.
Connelly, 479 U.S. 157, 166, 107 S.Ct.
515, 521-22, 93 L.Ed.2d 473 (1986)]
Judge Dreier in State v. Porter, supra, 210 N.J.Super. at
394, 510 A.2d 49 points out:
[V]iolation of the Rules of
Professional Conduct do not necessarily
constitute a basis [***8] for asserting
State action sufficient to justify a claim of
deprivation of a [*207] constitutional
right. The exclusionary rule is intended to
vindicate a constitutional right. If the
confession otherwise meets constitutional
muster, an ethical violation alone does not
rise to a deprivation of a constitutional
right.
Defendant concedes that she is not suggesting that
any rights of which she was deprived were constitutional
in nature. (Db9). Accordingly, since the exclusionary
rule remedies constitutional violations, those violations
premised on Professional Conduct Rules do not qualify
for exclusion.
Additionally, in State v. Darby, supra, 211
N.J.Super. 367, 511 A.2d 1222, the court found that
violation of an ethical rule by a prosecutor when
gathering evidence does not necessarily violate
defendant's Sixth Amendment rights, so that the evidence
obtained is not inadmissible. Judge Greenberg 3 further
concludes: "We do not see why ethical rules must be
incorporated into the Sixth Amendment. Further, we
point out that evidence given in violation of applicable
disciplinary rules may be admissible." Id. at 376, 511
A.2d 1222. [***9]
3 Judge Morton Greenberg, now sitting on the
3d Circuit Court of Appeals--not his brother
Judge Manuel Greenberg.
A state actor may violate ethical rules and
constitutional rights are not affected, thereby barring
exclusion. Clearly then, when a private actor in
gathering evidence obtains a statement in violation of an
ethical rule, that statement will be allowed in.
Accordingly, co-defendant's counsel, as private actor,
received the statement during his investigation and the
statement will be allowed.
Lastly, defendant proposes suppression of the
statement as the only available remedy when the Rules of
Professional Conduct are violated. 4 Parallels are drawn
by [**387] the defendant between Fourth Amendment
violations resulting in exclusion of [*208] illegally
obtained evidence and ethical violations with a proposed
remedy of exclusion.
4
In theorizing about a civil remedy, the
defendant, with reflective insight, observes in her
brief: "This is hardly the type of case where
negligence lawyers are waiting in line to take on
contingency." Perhaps so; but this logic does not
follow the law.
[***10]
The deterrence rationale prompting
exclusion under Fourth Amendment violations cannot be
substituted for violations of ethical codes.
As Florida Justice Ehrich observed, deterrence of
ethical violations may be effected through Bar discipline:
In the absence of constitutional grounds
for suppression, the only possible basis
for suppression would be to discourage
violation of DR 7-104(A)(1). Suppression
of the statements would therefore be in the
same posture as exclusion of evidence
under the exclusionary rule. The
exclusionary rule exists 'to deter--to
compel respect for the constitutional
guarantee [against illegal search and
seizure] in the only effectively available
way--by removing the incentive to
disregard it.' Elkins v. United States, 364
U.S. 206, 217, 80 S.Ct. 1437, 1444, 4
29
L.Ed.2d 1669 (1960). The exclusionary
rule thus exists because it is the only
effective way to deter violations of a
constitutional right. However, we have
another effective way to deter violations
of an ethical rule. Bar discipline can be
initiated by The Florida Bar, and also may
be initiated by a circuit court or a [***11]
district court judge pursuant to Florida
Bar Integration Rule, article XI, Rule
11.14. The goal of deterrence is therefore
achieved without the 'overkill' of
suppression and reversal.
[Suarez v. State, supra, 481 So.2d at
1207.]
Similarly, lawyers admitted to practice in New
Jersey may face sanctions under the administration of a
disciplinary authority if their conduct violates ethical
rules. See R.P.C. 8.3.
Therefore, the appropriate remedy is not suppression
of the statement but review by a disciplinary board. As
Suarez suggests, to exclude the evidence would amount
to an "overkill" when an alternative remedy is available,
notwithstanding that this remedy yields McCoy a pyrrhic
triumph at best.
In light of the New Jersey decisional law cited
hereinabove and the persuasive out-of-state authority, the
court denies defendant's motion to suppress her
statement.
30
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. IVAN SANCHEZ, DEFENDANT-APPELLANT
A-99 September Term 1991
SUPREME COURT OF NEW JERSEY
129 N.J. 261; 609 A.2d 400; 1992 N.J. LEXIS 409
May 5, 1992, Argued
July 23, 1992, Decided
PRIOR HISTORY:
[***1] On certification to the
Superior Court, Appellate Division.
DISPOSITION:
The judgment of the appellate
Division is reversed, and the matter is remanded to the
Law Division.
COUNSEL: Helen E. Szabo, Designated Counsel,
argued the cause for appellant (Wilfredo Caraballo,
Public Defender, attorney; Helen E. Szabo and Ernest G.
Ianetti, Designated Counsel, on the briefs).
Marsetta Lee, Deputy Attorney General, argued the
cause for respondent (Robert J. Del Tufo, Attorney
General of New Jersey, attorney).
JUDGES: For reversal and remandment -- Chief Justice
WILLENTZ, and Justices CLIFFORD, HANDLER,
POLLOCK, O'HERN, GARIBALDI and STEIN.
Opposed -- None. The opinion of the Court was
delivered by POLLOCK, J.
OPINION BY: POLLOCK
OPINION
[*262]
delivered by
[**401] The opinion of the Court was
POLLOCK, J.
The issue is whether the admission into evidence of
the uncounselled, post-indictment statement of
defendant, Ivan Sanchez, violated his constitutional right
to counsel. In an unreported opinion, the Appellate
Division ruled that defendant's statement was admissible,
and affirmed his conviction for non-capital murder (
N.J.S.A. 2C:11-3a(1) and -3a(2)) and possession of a
weapon for an unlawful purpose ( N.J.S.A. 2C:39-4b).
We granted defendant's [***2] petition for certification,
127 N.J. 546, 606 A.2d 361 (1991), and now reverse and
remand to the Law Division.
-IAccording to the State, the underlying facts
supporting the charges against defendant are that on
December 16, 1986, the
[*263]
victim, Robert
Merkerson, and defendant engaged in a fight in which
Merkerson knocked out one of defendant's teeth. Three
days later defendant stabbed and killed Merkerson
outside a bar in Passaic. On March 24, 1987, defendant
was indicted for homicide and unlawful possession of a
weapon.
Three months later, on June 26, Detective Howard
Simbol of the Passaic Police Department, who was in
charge of the investigation, learned that defendant was in
custody on unrelated charges at Riker's Island Prison in
New York. Detective Simbol drove to the prison with an
arrest warrant to serve as a detainer. On the following
day, Detective Simbol returned with Detective Thomas
Mauro to interrogate defendant. The parties present
sharply contrasting versions of that interrogation.
The detectives testified that they went to the
"counsel room" at Riker's Island, where defendant was
brought to them. After [***3] ascertaining that
defendant could speak English, they advised him of his
"Miranda rights," including his right to counsel.
According to the officers, defendant then spontaneously
stated: "I know why you are here." Pointing to his mouth,
defendant said: "I had to get him back for this. He
knocked my tooth out three days before I stabbed him."
Detective Simbol testified that he then stopped defendant
from saying anything further and asked defendant if he
would consent to giving a written statement. Defendant
consented, read a Miranda form, initialed each of the
rights on that form, and signed the waiver. The
detectives then proceeded with the interrogation. In a
signed statement, Sanchez detailed the circumstances of
the crime, including his departure to New York, and
admitted stabbing Merkerson. The detectives conceded
that at no time during the entire interview did they inform
defendant that he had been indicted.
Apart from agreeing that the detectives did not
inform him that he had been indicted, defendant's version
of the interrogation conflicted with the State's. He
testified that the detectives [*264] never informed him
of the subject of the interrogation, that [***4] they
denied his request for an attorney, and that they neither
read his Miranda rights to him nor provided him with an
opportunity to read the waiver before signing it. He also
31
denied stating that the victim had knocked out his tooth
or that he had killed the victim because the victim had
knocked out one of his teeth. Finally, he [**402]
claimed that the detectives had coerced him into signing
the waiver and the confession.
The trial court believed the detectives and denied
defendant's motion to suppress the statements. The court
found that defendant had given the statements willingly,
had never requested an attorney, and had knowingly and
voluntarily waived his Miranda rights. In addition, the
court held that the detectives had not violated defendant's
right to counsel, and found "absolutely no evidence" that
the detectives knew whether defendant was represented
by or had retained counsel. The court noted "the pivotal
consideration in making the Constitutional inquiry was
whether on being advised of his rights, the defendant
indicated that he wanted the assistance of Counsel * * *
and whether he wanted to have Counsel available or
present before any interrogation took place."
[***5] The jury convicted defendant on both
counts, and the court sentenced him to life with a thirtyyear parole disqualifier.
The Appellate Division
affirmed.
-IIThe Sixth Amendment to the United States
Constitution provides that "[i]n all criminal prosecutions,
the accused shall enjoy the right * * * to have the
Assistance of Counsel for his defence." Although the
Sixth Amendment, like the Fifth Amendment, guarantees
the right to counsel in pretrial interrogation, the two
guarantees serve different purposes. Generally speaking,
the Fifth Amendment protects an accused from selfincrimination during police questioning, and the Sixth
Amendment remedies the unfairness of that questioning
when the [*265] defendant is not represented. As when
proving a waiver of constitutional rights generally, to
prove a waiver of the right to counsel, the State must
meet the heavy burden of showing that the defendant
understood his or her right to counsel and knowingly,
voluntarily, and intelligently relinquished it. Brewer v.
Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51
L.Ed.2d 424, 430 (1977).
The purpose of the Sixth [***6] Amendment right
to counsel is to enable the defendant to confront the
prosecution and to ensure the integrity of the judicial
process. James J. Tomkovicz, Standards for Invocation
and Waiver of Counsel in Confession Contexts, 71 Iowa
L.Rev. 975, 980-81 (1986); Colin E. Fritz, Note,
Patterson v. Illinois: Applying Miranda Waivers to the
Sixth Amendment Right to Counsel, 74 Iowa L.Rev. 1261,
1266 (1989). For decades, the United States Supreme
Court has recognized that the Sixth Amendment
safeguards "fundamental rights of life and liberty" and
ensures that an accused is provided representation at trial.
Johnson v. Zerbst, 304 U.S. 458, 462, 58 S.Ct. 1019,
1022, 82 L.Ed. 1461, 1465 (1938). The right to counsel
also attaches to pretrial stages and is triggered when
"adversary judicial proceedings have been initiated."
Kirby v. Illinois, 406 U.S. 682, 688-89, 92 S.Ct. 1877,
1881-82, 32 L.Ed.2d 411, 417 (1972). Denying the right
to counsel in pretrial proceedings would reduce [***7]
the trial to no more than an appeal from interrogation.
United States v. Wade, 388 U.S. 218, 226, 87 S.Ct. 1926,
1931-32, 18 L.Ed.2d 1149, 1157 (1967); Escobedo v.
Illinois, 378 U.S. 478, 487-88, 84 S.Ct. 1758, 1763, 12
L.Ed.2d 977, 984 (1964); see Maine v. Moulton, 474 U.S.
159, 170, 106 S.Ct. 477, 484, 88 L.Ed.2d 481, 492 (1985)
("to deprive a person of counsel during the period prior
to trial may be more damaging than denial of counsel
during the trial itself"). Until recently, the Court held
that the Sixth Amendment right "does not depend upon a
request by the defendant," Brewer v. Williams, 430 U.S.
387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424, 438
(1977), but now it apparently requires defendants to
request counsel, Patterson v. Illinois, [*266] 487 U.S.
285, 290-91, 108 S.Ct. 2389, 2394, 101 L.Ed.2d 261, 271
(1988). [***8]
Unlike the Sixth Amendment, the Fifth Amendment
does not expressly provide for the right to counsel. The
Fifth Amendment right is a preventive measure that
protects an accused from self-incrimination during police
questioning. Miranda v. Arizona, 384 U.S. 436, 463-66,
86 S.Ct. 1602, 1622-24, 16 L.Ed.2d 694, 717-19 (1966).
Its essential purpose is to prevent [**403] compelled
self-incrimination. Johnson v. New Jersey, 384 U.S. 719,
729, 86 S.Ct. 1772, 1779, 16 L.Ed.2d 882, 890 (1966).
The right arises during custodial interrogation and seeks
to "insure that statements made in the governmentestablished atmosphere are not the product of
compulsion." Miranda, supra, 384 U.S. at 466, 86 S.Ct.
at 1623, 16 L.Ed.2d at 719.
-IIIUntil its decision four years ago in Patterson, supra,
487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261, the
United States Supreme Court had consistently extended
the protection of [***9] the Sixth Amendment right to
counsel. In Massiah v. United States, 377 U.S. 201, 84
S.Ct. 1199, 12 L.Ed.2d 246 (1964), the defendant had
been indicted, had retained a lawyer, and had been
released on bail. Subsequently, a police investigator
surreptitiously listened to the defendant's conversations
and recorded his incriminating statements. The Court
found that although the federal agents had not violated
the defendant's Fifth Amendment rights, eliciting the
statements "after he had been indicted and in the absence
of his counsel" violated the "basic protection" of the
Sixth Amendment. Id. at 206, 84 S.Ct. at 1203, 12
L.Ed.2d at 250; see also United States v. Henry, 447 U.S.
264, 274-75, 100 S.Ct. 2183, 2189, 65 L.Ed.2d 115, 125
32
(1980) (placing government informant in jail cell with
defendant violated Sixth Amendment).
[*267] Next, in Brewer, supra, 430 U.S. at 404-06,
97 S.Ct. at 1242-43, 51 L.Ed.2d at 440-41, [***10] the
Court ruled inadmissible incriminating statements made
in response to the officer's comment that if the victim's
body were located, she could receive a "Christian burial."
It explained that the State bore a "heavy burden" of
showing "'an intentional relinquishment of a known right
or privilege'" when seeking to establish that the
defendant had effectively waived his right to counsel. Id.
at 404, 97 S.Ct. at 1242, 51 L.Ed.2d at 439 (quoting
Zerbst, supra, 304 U.S. at 464, 58 S.Ct. at 1023, 82 L.Ed.
at 1466). Further, "[t]his strict standard applies equally to
an alleged waiver of the right to counsel whether at trial
or at a critical stage of pretrial proceedings." Id. at 404,
97 S.Ct. at 1242, 51 L.Ed.2d at 440. Noting that a judge
had informed the defendant of his Miranda rights at
arraignment, the Court nonetheless held that the
defendant had not subsequently waived his Sixth
Amendment right to counsel.
Later, in Edwards v. Arizona, 451 U.S. 477, 484-85,
101 S.Ct. 1880, 1885, 68 L.Ed.2d 378, 386 (1981),
[***11] the Court held that once a defendant has
asserted the Fifth Amendment right to counsel, police
may not initiate questioning in the absence of counsel.
See Minnick v. Mississippi, U.S. , , 111 S.Ct. 486,
491, 112 L.Ed.2d 489, 498 (1990) (clarifying Edwards to
hold that "[w]hen counsel is requested, interrogation
must cease, and officials may not reinitiate interrogation
without counsel present, whether or not the accused has
consulted with his attorney"). After Edwards, the Court
extended that holding to a defendant's assertion of his
Sixth Amendment right to counsel. Michigan v. Jackson,
475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986).
The Court held that "if police initiate interrogation after a
defendant's assertion, at an arraignment or similar
proceeding, of his right to counsel, any waiver of the
defendant's right to counsel for that police-initiated
interrogation is invalid." Id. at 636, 106 S.Ct. at 1411, 89
L.Ed.2d at 642. The Court explained that "the [***12]
Sixth Amendment right to counsel at a postarraignment
interrogation requires at least as [*268] much protection
as the Fifth Amendment right to counsel at any custodial
interrogation." Id. at 632, 106 S.Ct. at 1408-09, 89
L.Ed.2d at 639.
In a leading pre-Patterson case, the Second Circuit
Court of Appeals found no waiver of the right to counsel
by a defendant who knew that he had been indicted and
who had been given Miranda warnings. United States v.
Mohabir, 624 F.2d 1140 (2nd Cir.1980); accord United
States v. Clements, 713 F.2d 1030, 1037 (4th Cir.1983)
(suppressing confession of defendant who had been
given Miranda rights but not told of indictment). Contra
United [**404] States v. Brown, 569 F.2d 236, 238-39
(5th Cir.1978) (en banc) (reading Miranda rights to
defendant in courtroom corridor without presence of
appointed counsel results in valid waiver of Sixth
Amendment right); United States v. Monti, 557 F.2d 899,
904 (1st Cir.1977) (making inculpatory statements
[***13] after indictment and retention of counsel results
in valid waiver of Sixth Amendment right); United States
v. Cobbs, 481 F.2d 196, 199-200 (3rd Cir.) (permissible,
after Miranda warnings, to interrogate defendant in
custody without appointed counsel), cert. denied, 414
U.S. 980, 94 S.Ct. 298, 38 L.Ed.2d 224 (1973); United
States v. Springer, 460 F.2d 1344, 1350-54 (7th Cir.)
(uncounselled written confession and waiver of Miranda
rights results in valid waiver of Fifth and Sixth
Amendment rights), cert. denied, 409 U.S. 873, 93 S.Ct.
205, 34 L.Ed.2d 125 (1972); Coughlan v. United States,
391 F.2d 371, 372 (9th Cir.) (obtaining uncounselled
confession from defendant who had been advised of
Miranda rights results in valid waiver of Sixth
Amendment right), cert. denied, 393 U.S. 870, 89 S.Ct.
159, 21 L.Ed.2d 139 (1968). The court noted that
although immigration [***14] and naturalization service
agents and an assistant United States attorney had told
the defendant that he had been indicted, no one had
explained to him the meaning of an indictment. Mohabir,
supra, 624 F.2d at 1145, 1149. It reasoned that after an
indictment, the defendant's "need for counsel is
particularly acute," and "any questioning of the defendant
by the government can only be 'for the purpose of [*269]
buttressing * * * a prima facie case.'" Id. at 1148
(quoting People v. Settles, 46 N.Y.2d 154, 412 N.Y.S.2d
874, 879, 385 N.E.2d 612, 616 (1978)). Continuing, the
court stated that "after prosecution has begun, the right to
obtain the assistance of counsel at all crucial stages is
essential if both the symbol and reality of a fair trial are
to be preserved * * *." Id. at 1149. It found that,
notwithstanding the Miranda warnings, "[t]he record
here suggests that appellant did not understand the
gravity of his position; he apparently hoped that he
would aid his case by telling 'his side of the story.'" Ibid.
Finding the
[***15]
Miranda warnings to be
insufficient, the court held "that the government failed to
carry its heavy burden of proving that appellant's
purported waiver satisfies the 'higher standard' that our
cases have adopted in the Sixth Amendment context." Id.
at 1151.
In Patterson, supra, 487 U.S. 285, 108 S.Ct. 2389,
101 L.Ed.2d 261, however, the Court changed direction.
See William T. Pizzi, Waiver of Rights in the
Interrogation Room: The Court's Dilemma, 23
Conn.L.Rev. 229, 252 (1991) ("Because Patterson seems
so ad hoc in its reasoning, it is difficult to predict what
the Court will find important or unimportant for waiver
purposes in the future."); Samuel Rosenthal & Michelle
A. Rice, Whittling Away the Right to Counsel, 3
Crim.Just. 2, 3 (Winter 1989) (principle inquiry of Court
33
in Sixth Amendment cases during 1988 term was
subjective determination of "whether the right will assist
the criminal justice process to determine guilt or
innocence"); Note, Patterson v. Illinois: Applying
Miranda Waivers to the Sixth Amendment Right to
Counsel, supra, 74 Iowa [***16]
L.Rev. at 1262
(Patterson is "diversion" from the Court's previous
bright-line rules protecting individual's Sixth Amendment
right to counsel); John S. Banas, III, Case Comment,
Sixth Amendment -- Waiver of the Sixth Amendment
Right to Counsel at Post-Indictment Interrogation, 79
J.Crim.L. & Criminology 795, 830 (1988) (majority's
rationale "is erroneous because it fails to follow the
underlying principles of precedent * * *"). The facts in
Patterson were [*270] that the defendant had been a
member of a gang involved in two fights with another
gang. In the second fight, a rival gang member had died.
The defendant had been arrested, had waived his
Miranda rights, and had given a statement to the police
about the first fight, but had denied knowing anything
about the victim's death. 487 U.S. at 287-88, 108 S.Ct. at
2392, 101 L.Ed.2d at 269.
While being transported to the county jail, the
defendant learned that he had been indicted for murder.
On learning that one member of his gang had not been
indicted, [**405] he said: "Why wasn't he indicted, he
did everything." 487 U.S. at 288, 108 S.Ct. at 2392, 101
L.Ed.2d at 269. [***17] A police officer gave the
defendant a Miranda waiver form, which he initialed and
signed. The defendant then gave an incriminating
statement to the officer. Later that day, after receiving
another Miranda warning, the defendant again confessed
to his involvement in the murder. The trial court denied
the defendant's motion to suppress his statements, and the
jury convicted him.
A seriously divided Court rejected the defendant's
argument that the Sixth Amendment barred the police
from initiating post-indictment questioning until he had
received the advice of counsel. The Court repudiated a
distinction between an accused's pre-indictment Fifth
Amendment right to counsel and the Sixth Amendment
post-indictment right. It held that because the defendant
had not asked for a lawyer, the police had not violated
his right to counsel. 487 U.S. at 290-91, 108 S.Ct. at
2394, 101 L.Ed.2d at 271.
According to the Court, the issue was whether the
defendant, by waiving his Fifth Amendment right to
counsel, had also made a "'knowing and intelligent'
waiver of his Sixth Amendment right [to counsel]." Id. at
292, 108 S.Ct. at 2394, 101 L.Ed.2d at 272 [***18]
(citing Brewer, supra, 430 U.S. at 404, 97 S.Ct. at 1242,
51 L.Ed.2d at 439, and Zerbst, supra, 304 U.S. at 464, 58
S.Ct. at 1023, 82 L.Ed. at 1466). The critical inquiry was
whether "the accused, who waived his Sixth Amendment
rights [*271] during postindictment questioning, [was]
made sufficiently aware of his right to have counsel
present during the questioning, and of the possible
consequences of a decision to forgo the aid of counsel."
Id. 487 U.S. at 292-93, 108 S.Ct. at 2395, 101 L.Ed.2d at
272. Rejecting the argument that a higher standard
applied to a waiver of a Sixth Amendment right to
counsel, the Court found that the Miranda warnings
sufficed to support a waiver of the defendant's right to
counsel. In reaching this result, the Court engaged in a
"pragmatic" inquiry, and asked
what purposes a lawyer can serve at the
particular stage of the proceedings in
question, and what assistance he could
provide to an accused at that stage -- to
determine [***19] the scope of the Sixth
Amendment right to counsel, and the type
of warnings and procedures that should be
required before a waiver of that right will
be recognized. [Id. at 298, 108 S.Ct. at
2397, 101 L.Ed.2d at 276.]
That inquiry led the majority to conclude that
[t]he State's decision to take an
additional step and commence formal
adversarial proceedings against the
accused does not substantially increase
the value of counsel to the accused at
questioning, or expand the limited
purpose that an attorney serves when the
accused is questioned by authorities.
With respect to this inquiry, we do not
discern a substantial difference between
the usefulness of a lawyer to a suspect
during custodial interrogation, and his
value to an accused at postindictment
questioning. [Id. at 298-99, 108 S.Ct. at
2398, 101 L.Ed.2d at 276.]
The four dissenting justices attached far greater
significance to the indictment. Id. at 303-04, 108 S.Ct. at
2401, 101 L.Ed.2d at 279. They wrote: [***20]
"The initiation of judicial criminal
proceedings is far from a mere formalism.
It is the starting point of our whole system
of adversary criminal justice. For it is
only then that the government has
committed itself to prosecute, and only
then that the adverse positions of
government and defendant have solidified.
It is then that a defendant finds himself
faced with the prosecutorial forces of
organized society, and immersed in the
34
intricacies of substantive and procedural
criminal law. It is this point, therefore,
that marks the commencement of the
'criminal prosecutions' to which alone the
explicit guarantees of the Sixth
Amendment are applicable." [Id. at 304,
108 S.Ct. at 2401, 101 L.Ed.2d at 280
(quoting Kirby, supra, 406 U.S. at 690-91,
92 S.Ct. at 1882, 32 L.Ed.2d at 417-18).]
Noting the "strong presumption against waivers," the
dissent found the Miranda warnings inadequate to satisfy
the defendant's [**406] Sixth Amendment right to
counsel. The Miranda warnings [*272] amounted to a
"gross understatement of the disadvantage [***21] of
proceeding without a lawyer and an understatement of
what a defendant must understand to make a knowing
waiver." Id. at 307-08, 108 S.Ct. at 2403, 101 L.Ed.2d at
282. The dissent concluded that "without a careful
discussion of the pitfalls of proceeding without counsel,
the Sixth Amendment right cannot be properly waived,"
and that "[a]n adversary party, moreover, cannot
adequately provide such advice. Consequently, once the
right to counsel attaches and the adversary relationship
between the state and the accused solidifies, a prosecutor
cannot conduct a private interview without 'dilut[ing] the
protection afforded by the right to counsel.'" Id. at 31011, 108 S.Ct. at 2404, 101 L.Ed.2d at 284 (quoting
Maine v. Moulton, 474 U.S. 159, 171, 106 S.Ct. 477, 485,
88 L.Ed.2d 481, 493 (1985)).
Patterson may be distinguished on its facts from the
present case. The defendant in Patterson knew of his
indictment when he confessed to the police, but Sanchez
did not know that he had been indicted when the
detectives interviewed him. In a footnote, however, the
Patterson Court declined [***22] to consider whether a
waiver would be effective if the defendant did not know
that he or she had been indicted, writing: "Because, in
this case, petitioner concedes that he was so informed * *
* we do not address the question whether or not an
accused must be told that he has been indicted before a
postindictment Sixth Amendment waiver will be valid *
* *." 487 U.S. at 295 n. 8, 108 S.Ct. at 2396 n. 8, 101
L.Ed.2d at 274 n. 8. The Court's reservation of that
question may be more apparent than real. Patterson's
holding is that Miranda warnings adequately alert an
accused of the right to counsel and of the consequences
of a decision to waive his or her Sixth Amendment rights
during post-indictment questioning. 487 U.S. at 298, 108
S.Ct. at 2398, 101 L.Ed.2d at 276. "So long as the
accused is made aware of the 'dangers and disadvantages
of self-representation' during postindictment questioning,
by use of the Miranda warnings, his waiver of his Sixth
Amendment right to counsel at such questioning is
'knowing and intelligent.'" Ibid. [***23] That rationale
[*273]
suggests that nothing more than Miranda
warnings are required during post-indictment
interrogation for defendants to make a knowing and
intelligent waiver of their Sixth Amendment right to
counsel. We are left with a feeling of uncertainty whether
the factual distinction between Patterson and the present
case makes a difference.
In several cases, we have concluded that the Sixth
Amendment is more demanding than the Fifth
Amendment. See State v. Clausell, 121 N.J. 298, 350-55,
580 A.2d 221 (1990) (noting distinction between waiver
of Fifth and Sixth Amendment rights; finding no Sixth
Amendment waiver had occurred because State failed to
prove defendant had knowingly and intelligently waived
right to counsel); State v. Stein, 70 N.J. 369, 383-86, 360
A.2d 347 (1976) (finding Fifth Amendment waiver valid,
although no valid waiver of Sixth Amendment right);
State v. Porter, 210 N.J.Super. 383, 389, 510 A.2d 49
(App.Div.) (noting different standards for Fifth and Sixth
Amendment waiver; no Sixth [***24] Amendment
violation from introduction of defendant-initiated postindictment statements given after Miranda waiver when
counsel had not yet been appointed), certif. denied, 105
N.J. 556, 523 A.2d 191 (1986). But see State v. Darby,
211 N.J.Super. 367, 373, 511 A.2d 1222 (App.Div.),
certif. denied, 105 N.J. 559, 523 A.2d 192 (1986).
It now appears that we may have misperceived the
relationship between those two amendments. Patterson
states:
While our cases have recognized a
"difference" between the Fifth
Amendment and Sixth Amendment rights
to counsel, and the "policies" behind those
constitutional guarantees, we have never
suggested that one right is "superior" or
"greater" than the other, nor is there any
support in our cases for the notion that
because a Sixth Amendment right may be
involved, it is more difficult to waive than
the Fifth Amendment counterpart. [487
U.S. at 297-98, 108 S.Ct. at 2397; 101
L.Ed.2d at 275.] [***25]
Thus, Patterson holds that after indictment, a defendant
may waive his or her [**407] right to counsel under the
Sixth Amendment as readily as under the Fifth
Amendment.
[*274] -IVAs we noted five years ago, "[t]his Court has
frequently resorted to our own State Constitution in order
35
to afford our citizens broader protection of certain
personal rights than that afforded by analogous or
identical provisions of the federal Constitution * * *."
State v. Novembrino, 105 N.J. 95, 145, 519 A.2d 820
(1987). Although the language of article 1, paragraph 10
of the New Jersey Constitution is virtually identical with
that of the Sixth Amendment, we have held in other
contexts that the State Constitution affords greater
protection of the right to counsel than is provided under
the federal constitution. Those holdings constitute a
body of pre-existing state law that informs our
construction of the right to counsel as guaranteed by
article 1, paragraph 10. See Right to Choose v. Byrne, 91
N.J. 287, 301, 450 A.2d 925 (1982) (holding "where a
previously established body of state law [***26] leads to
a different result, then we must determine whether a
more expansive grant of rights is mandated by our State
Constitution"); State v. Hunt, 91 N.J. 338, 365, 450 A.2d
952 (1982) (Handler, J., concurring) (identifying preexisting body of state law as criterion for invoking state
constitution). The holding in Patterson requires that we
reconsider whether our traditional commitment to the
right to counsel leads to a different result in this case.
See Hunt, supra, 91 N.J. at 367, 450 A.2d 952 (indicating
that a state's "traditions may also provide a basis for the
independent application of its constitution"); cf. State v.
Williams, 93 N.J. 39, 58, 459 A.2d 641 (1983)
(exceptionally-vigorous judicial tradition in this state
favors open judicial proceedings).
Historically, the guarantee of the right to counsel in
the New Jersey Constitution antedates the adoption of the
Sixth Amendment. For centuries, this State has
highlighted the right to counsel. Consistent with the
historical emphasis on that right, article [***27] 1,
paragraph 10 of the New Jersey Constitution provides:
[*275] In all criminal prosecutions, the
accused shall have the right to a speedy
and public trial by an impartial jury; to be
informed of the nature and cause of the
accusation; to be confronted with the
witnesses against him; to have
compulsory process for obtaining
witnesses in his favor; and to have the
assistance of counsel in his defense.
That provision continues an earlier guarantee in article 1,
paragraph 8 of the 1844 Constitution, which expressly
provided that "[i]n all criminal prosecutions the accused
shall have the right * * * to have the assistance of
counsel in his defense."
So steadfast has been our commitment that we have
secured the right to counsel in settings in which that right
has not been assured by federal law. For example, the
right to counsel of indigent defendants has "existed in
this state since 1795 -- more than 150 years before the
United States Supreme Court put the indigent's right to
counsel on a federal constitutional basis * * *." State in
Interest of Antini, 53 N.J. 488, 490-91, 251 A.2d 291
(1969). Indeed, this State recognized [***28]
an
indigent's right to counsel not only before the United
States Supreme Court, but before any other state had
recognized that right. State v. Horton, 34 N.J. 518, 52223, 170 A.2d 1 (1961). In the context of multirepresentation of defendants by a single attorney, we also
have recognized that the law of this state provided an
independent basis for the recognition of the right to
counsel. To assure a defendant's right to counsel, we
presumed prejudice from the potential conflict of interest
arising from the representation of multiple defendants,
although the United States Supreme Court required an
actual conflict to establish prejudice. We wrote:
We recognize that our rule amounts to
an absolute bar to multiple representation
unless defendants are fully advised of the
potential problems involved. While other
courts have not chosen to follow this route
when interpreting the Sixth Amendment,
we are convinced that it is necessary to
give full meaning to our State
constitutional guarantee of the effective
assistance of counsel. [State v. [**408]
Belluci, 81 N.J. 531, 546-47, 410 A.2d
666 (1980).] [***29]
Earlier, "to protect the proper interests of the defendant
and to advance the sound administration of justice in our
courts," we required the assignment of counsel for
indigent defendants in municipal courts, although the
United States Supreme Court [*276] had not yet
addressed the issue. Rodriguez v. Rosenblatt, 58 N.J.
281, 294, 277 A.2d 216 (1971). In sum, the state
constitutional guarantee of the right to counsel and our
duty to supervise criminal trials provide an independent
basis for deciding whether the post-indictment
administration of Miranda warnings establishes that a
defendant's waiver of the right to counsel was knowing
and intelligent.
To resolve the issue, we need not go so far as the
New York Court of Appeals, which has held that "a
criminal defendant under indictment and in custody may
not waive his right to counsel unless he does so in the
presence of an attorney." Settles, supra, 412 N.Y.S.2d at
879, 385 N.E.2d at 616. For example, a waiver may be
valid if the defendant has been arraigned before a judicial
officer who has advised [***30] the defendant "that he
has been indicted, the significance of an indictment, that
36
he has a right to counsel, and the seriousness of his
situation in the event he should decide to answer
questions of any law enforcement officers in the absence
of counsel." Mohabir, supra, 624 F.2d at 1153.
The return of an indictment transforms the
relationship between the State and the defendant. By
obtaining the indictment, the State represents that it has
sufficient evidence to establish a prima facie case. Once
the indictment is returned, the State is committed to
prosecute the defendant. From that moment, if not
before, the prosecutor and the defendant are adversaries.
Questioning the accused can be only "for the purpose of
buttressing * * * a prima facie case." Settles, supra, 412
N.Y.S.2d at 879, 385 N.E.2d at 616; People v. Waterman,
9 N.Y.2d 561, 216 N.Y.S.2d 70, 73-76, 175 N.E.2d 445,
447-48 (1961). The spotlight is on the accused. Under
those circumstances, the perfunctory recitation of the
right to counsel [***31] and to remain silent may not
provide the defendant with sufficient information to
make a knowing and intelligent waiver. See United
States v. Massimo, 432 F.2d 324, 327 (2d Cir.1970)
(Friendly, J., dissenting) ("there would seem to be
[*277] much ground for outlawing all statements
resulting from post-arraignment of indictment
interrogation * * * in the absence of counsel when the
questioning has no objective other than to establish the
guilt of the accused"). Such a recitation does not tell the
defendant the nature of the charges, the dangers of selfrepresentation, or the steps counsel might take to protect
the defendant's interests. Those steps include pretrial
motions such as those to test the sufficiency of the
indictment or to suppress illegally-seized evidence. They
also include the negotiation, subject to the approval of
the court, of a plea agreement. Given the adversarial
nature of their relationship, for the State's representatives
to communicate adequately that information to an
indicted defendant would be difficult, nigh to impossible.
As a general rule, after an indictment and before
arraignment, prosecutors or their representatives [***32]
should not initiate a conversation with defendants
without the consent of defense counsel.
Other considerations support that rule. The Rules of
Professional Conduct (RPC) prohibit a prosecutor from
seeking "to obtain from an unrepresented accused a
waiver of important pretrial rights * * *." RPC 3.8. They
also prevent a lawyer from communicating "about the
subject of the representation with a party the lawyer
knows to be represented by another lawyer in the matter,
unless the lawyer has the consent of the other lawyer or
is authorized by law to do so." RPC 4.2. The implication
of these rules is that after the return of an indictment,
prosecutors and their representatives should not initiate
conversations with an uncounselled defendant. That a
defendant is indigent and awaiting assignment of counsel
does not free the prosecutor to proceed with an
otherwise-prohibited interrogation. As Professor Gillers
states, the identity of the lawyer for an indigent
defendant is known: it will be the Public Defender or
designated counsel. Stephen Gillers, Regulation of
Lawyers 92 (1992). Conduct of an interview [**409]
with a defendant by an investigating officer may not
insulate the [***33] prosecutor. Even if not accountable
for the unauthorized conduct of [*278] an investigating
officer, a prosecutor should not ignore such conduct.
Rule 3.8(e) of the American Bar Association's Model
Rules of Professional Conduct (1992), although not part
of RPC 3.8, provides that a prosecutor in a criminal case
shall
[e]xercise reasonable care to prevent
investigators, law enforcement personnel,
employees or other persons assisting or
associated with the prosecutor in a
criminal case from making an
extrajudicial statement that the prosecutor
would be prohibited from making under
Rule 3.6 * * *.
Concerning a prosecutor's duty not to obtain waivers
unless they are knowing, voluntary, and intelligent,
Professor Hazard writes that Rule [8.4(a)] "makes it clear
that a prosecutor may not escape this duty by directing or
permitting others to act in his stead. That comment
implies a duty to take affirmative steps to assure that the
police do not coerce a defendant into making a
confession or waiving important rights." Geoffrey C.
Hazard, Jr. & W. William Hodes, The Law of Lawyering:
A Handbook on the Model Rules of Professional Conduct
696 (1992). Even if unprofessional [***34] conduct
does not compel exclusion of illegally-obtained evidence,
it can constitute an unfair practice that colors the
determination whether a waiver of a right of counsel has
been made knowingly and intelligently.
Finally, the State argues that because "evidence of
defendant's guilt flowed overwhelmingly from the
eyewitnesses' accounts of the murder, admission of his
confession was harmless beyond a reasonable doubt."
We disagree. The test for determining whether an error
is harmless "'is whether there is a reasonable possibility
that the evidence complained of might have contributed
to the conviction.'" Chapman v. California, 386 U.S. 18,
23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705, 710 (1967)
(quoting Fahy v. Connecticut, 375 U.S. 85, 86-87, 84
S.Ct. 229, 230, 11 L.Ed.2d 171, 173 (1963)); see R. 2:102 ("Any error or omission shall be disregarded by the
appellate court unless it is of such a nature as to have
been clearly capable of producing an unjust result * *
*.").
Measuring the admission of defendant's
uncounselled statement against [***35] that stringent
standard, we are left uncertain whether the error may
have contributed to defendant's conviction.
37
[*279]
We hold that the post-indictment
interrogation of defendant violated his right to counsel
under article 1, paragraph 10 of the New Jersey
Constitution. The trial court should not have admitted
his confession into evidence. We also hold that the
admission of that confession was not harmless error.
The judgment of the Appellate Division is reversed,
and the matter is remanded to the Law Division.
38
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. P.Z., DEFENDANT-RESPONDENT.
A-21 September Term 1996
SUPREME COURT OF NEW JERSEY
152 N.J. 86; 703 A.2d 901; 1997 N.J. LEXIS 530
October 8, 1996, Argued
November 26, 1997, Decided
PRIOR HISTORY:
[***1] On appeal from the
Superior Court, Appellate Division, whose opinion is
reported at 285 N.J. Super. 219, 666 A.2d 1000 (1995).
SYLLABUS
(This syllabus is not part of the opinion of the Court.
It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed
nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not
have been summarized).
State of New Jersey v. P.Z.,152 N.J. 86, 703 A.2d
901 (1997)
Argued October 8, 1996 -- Decided November 26,
1997
PORITZ, C.J., writing for a majority of the
Court.
The issue in this case is whether a caseworker from
DYFS must give Miranda warnings to a parent prior to a
non-custodial interview related to a child abuse
investigation.
In November 1993, defendant's seven-week-old
daughter, C.Z., was admitted to Jersey Shore Medical
Center where she was diagnosed with and treated for
"Shaken Baby Syndrome." C.Z. suffered from both old
and new bleeding in the brain and from retinal bleeding
in both eyes. The hospital notified DYFS about C.Z.'s
injuries as mandated by statute. DYFS commenced a
Title Nine [***2] investigation and reported the case to
the Ocean County Prosecutor's Office.
children to DYFS but gave physical custody of the older
child to defendant's father. C.Z. remained hospitalized.
Shortly before April 5, 1994, defendant's wife informed
her counselor that defendant had admitted causing C.Z.'s
injuries. C.Z. had been hospitalized for five months and
was expected to be released shortly. The mother's
statement was therefore critical to the placement of both
C.Z. and her older sister. DYFS caseworker Cheryl Ann
Kobran attended a case planning conference with her
supervisors and the [***3] Deputy Attorney General in
charge of the Title Nine action to discuss how to proceed
with the new information. It was decided that Kobran
should interview P.Z. after contacting the Ocean County
Prosecutor's Office to determine whether the interview
would impede any pending investigation by that Office.
On the morning of April 5, Kobran spoke to an
investigator at the Prosecutor's Office and advised him
that she planned to interview P.Z. The investigator told
Kobran that, although the Prosecutor's Office could not
interview defendant because he had a lawyer, there was
no obstacle to DYFS questioning P.Z. The investigator
also asked Kobran to report the results of her interview
with defendant to the prosecutor.
Later that day, Kobran and another DYFS
caseworker made an unannounced home visit to
defendant. Kobran told defendant she was there to ask
him about his wife's statement that he had admitted
causing his infant daughter's injuries. Defendant's father
was present and Kobran asked him to leave the room
because he was talking. The father complied and waited
outside on the front porch.
Initial interviews by a DYFS caseworker with
defendant, his wife, and defendant's father did not reveal
a plausible explanation for C.Z.'s injuries. The Attorney
General instituted a civil action against defendant and his
wife under Title Nine. DYFS sought temporary custody
of C.Z. and her two-year-old sister, on grounds that C.Z.
had been injured by "other than accidental means" and
that DYFS was unable to ascertain who had caused the
child's injuries. Defendant and his wife were represented
by separate counsel in the Title Nine action.
Defendant acknowledged that he knew why Kobran
was there, but said his attorney had [***4] told him not
to speak to anyone. Kobran nonetheless encouraged
defendant to speak, telling him that she was there to
complete the DYFS investigation and to decide where to
place C.Z. upon her impending discharge from the
hospital. Defendant admitted causing C.Z.'s injuries by
shaking the baby two or three times because she was
crying and he could not console her. He said he felt
remorse for what had happened and deserved to be
punished. Kobran advised defendant that his statement
would be turned over to the Prosecutor's Office and left.
The Chancery Division granted legal custody of both
Almost six months later, on September 28, 1994,
39
defendant was charged with endangering the welfare of a
child and aggravated assault, both second degree crimes.
Defendant pled not guilty and his attorney moved to
suppress defendant's statement to Kobran. The Title Nine
action concluded on February 10, 1995, when custody of
C.Z. and her sister was granted to their mother.
be realized. The criminal justice system acts separately,
but in tandem with the civil system, to investigate and
prosecute those who abuse and neglect children. To the
extent that criminal prosecution [***7] serves as a
deterrent to child abuse, the criminal justice system also
protects children. (pp. 9-16)
At the suppression hearing, defendant claimed that
his rights as guaranteed by the Fifth, Sixth, and
Fourteenth Amendments to the United States
Constitution had been violated by the State. The trial
court determined that defendant's Fifth Amendment
rights had not been violated [***5] because Kobran's
interview with defendant was non-custodial. However, it
considered that defendant had invoked his Sixth
Amendment right to counsel when he told Kobran his
attorney had advised him not to talk to her. The court
found persuasive that a Title Nine action was pending,
that counsel had been appointed for defendant, that the
prosecutor was investigating the matter, and that the
prosecutor had knowledge that the interview was taking
place.
2. In Miranda, the U.S. Supreme Court determined
that a custodial interrogation by law enforcement officers
is inherently coercive, automatically triggering the Fifth
Amendment privilege against self-incrimination. The
predicate requirements of Miranda are that the defendant
must be in custody and the interrogation must be carried
out by law enforcement. The circumstances surrounding
defendant's interview on April 5 fail to demonstrate the
coercive atmosphere and restraint of freedom that
comprises custodial interrogation. Defendant asserts,
nonetheless, that he invoked the privilege against selfincrimination when he stated that his attorney had
advised him not to speak with a DYFS investigator.
Again, despite defendant's assertions to the contrary, the
issue turns on his non-custodial status. The Court
concludes that defendant's reference to his attorney did
not, in this setting, require the DYFS investigator to
terminate the interview. (pp. 16-25)
The Appellate Division granted leave to appeal and
affirmed. It focused on the "serious personal
consequences" that flowed from a Title Nine proceeding
and concluded that "there was at least some coercive
element in the environment of the situation confronting
defendant" because "parallel civil and criminal systems
[were] both operating against [him]." It held that
fundamental fairness and the Title Nine objective of child
protection require that statements made to DYFS in the
context of a Title Nine investigation may not be used
against a party in a criminal action unless there is advice
of Miranda rights and the affording of the Sixth
Amendment right to counsel.
The Court granted leave to appeal.
HELD: There [***6] is no constitutional or other
basis on which to hold defendant's April 5, 1994
statement inadmissible. The Court also finds no basis to
require that DYFS caseworkers give Miranda warnings
or afford a right to counsel during non-coercive, noncustodial interviews of parents subject to Title Nine
investigations.
1. Title Nine was enacted to protect children from
abuse and neglect. It contemplates criminal prosecution
of acts of abuse and neglect that constitute crimes. It
requires that DYFS immediately report all instances of
suspected abuse and neglect to the county prosecutor.
Title Nine responds to the terrible reality that not all
children are safe with their families. At the same time,
the goal of family rehabilitation and reunification is a
priority unless that goal is not in the best interest of the
child. The abused child's interest is paramount; only
when the child can be protected within the family will the
parents' interest in the care and custody of their child also
3. The state may not force an individual to choose
between his or her Fifth Amendment privilege and
another important [***8] interest because such choices
are deemed to be inherently coercive. Defendant asserts
that his statement was obtained in a coercive manner
because he was faced with an implied threat that his
children would not be returned unless he admitted
responsibility for his youngest daughter's injuries.
Although an admission of abuse may aid in the
rehabilitative process, termination of custody is not
automatic on invocation of the privilege. Defendant was
not asked to choose between his children and the exercise
of his right to remain silent. The Court concludes that
defendant's statement to Kobran was not coerced in
violation of his Fifth Amendment privilege against selfincrimination. (pp. 25-31)
4. The right to counsel in criminal proceedings does
not attach until the return of an indictment or like
process. The court below extended the right to counsel to
Title Nine civil actions in which a complaint has been
filed. The Court declines to expand the rights of Title
Nine respondents to include protections accorded
criminal defendants after they have been indicted or
taken into custody. Defendant asserts that because Title
Nine envisions a right to counsel once a complaint has
been filed, [***9] he is entitled to have counsel present
whenever a DYFS caseworker conducts a child abuse
investigation. Acceptance of defendant's argument would
shift the primary focus of Title Nine from the right of
children to be protected from abuse and neglect to the
right of parents to the custody of their children. (pp. 31-
40
37)
5. Defendant also claims that the Due Process
Clause of the Fourteenth Amendment requires the
suppression of his statement because it was not made
voluntarily. Although defendant claims that he feared his
children would not be returned if he did not confess, his
subjective fear did not derive from a threat amounting to
coercion. Defendant had a lawyer in the Title Nine
proceeding who had advised him not to speak. He chose
not to take that advice. In the totality of the
circumstances, the Court holds that defendant's statement
was voluntary. (pp. 37-44)
6. The court declines to apply the doctrine of
fundamental fairness to require any additional procedural
safeguards not now required by constitution or statute.
The relationship between DYFS and the prosecutor
concerned the Appellate Division in this case. The
exchange of information between DYFS and the
prosecutor [***10] that is statutorily required in these
cases does not demonstrate such unfairness and want of
consideration for justice that defendant's statement must
be suppressed. Kobran's visit to P.Z. had a legitimate
independent purpose and was not pretextual. If there was
evidence that a DYFS worker met with defendant simply
as a subterfuge to achieve law enforcement purposes, the
Court might reach a different result. There was no such
evidence here. (pp. 44-50)
The judgment of the Appellate Division is
REVERSED.
JUSTICE POLLOCK, dissenting, in which
JUSTICE COLEMAN joins, is of the view that it is
fundamentally unfair to allow the prosecutor to introduce
in defendant's criminal trial his uncounseled, inculpatory
statement to a DYFS worker.
JUSTICE COLEMAN, dissenting, is of the view
that defendant's confession also should be suppressed
under the Due Process Clause of the Fourteenth
Amendment because it was coerced by the interrogator's
not-so-subtle suggestion that if defendant did not
cooperate, his fundamental right to his children would be
jeopardized.
JUSTICES HANDLER, O'HERN, GARIBALDI,
and STEIN join in CHIEF JUSTICE PORITZ's
opinion. JUSTICE [***11] POLLOCK has filed a
separate, dissenting opinion, in which JUSTICE
COLEMAN joins. JUSTICE COLEMAN has filed a
separate, dissenting opinion.
COUNSEL: Marc E. Roessler, Assistant Prosecutor,
argued the cause for appellant (Daniel J. Carluccio,
Ocean County Prosecutor, attorney; Mr. Roessler,
Thomas M. Cannavo and Brent D. Miller, Assistant
Prosecutors, on the briefs).
James K. Smith, Jr., Assistant Deputy Public Defender,
argued the cause for respondent (Susan L. Reisner,
Public Defender, attorney; Mr. Smith and James Pinchak,
Assistant Deputy Public Defender, on the brief).
Peter D. Alvino, Deputy Attorney General, argued the
cause for amicus curiae, New Jersey Division of Youth
and Family Services (Peter Verniero, Attorney General
of New Jersey, attorney; Andrea M. Silkowitz, Assistant
Attorney General, of counsel).
JUDGES: The opinion of the Court was delivered by
PORITZ, C.J. POLLOCK, J., dissenting. Justice
COLEMAN joins in this opinion. COLEMAN, J.,
dissenting. Chief Justice PORITZ, and Justices
HANDLER, O'HERN, GARIBALDI and STEIN.
Justices POLLOCK and COLEMAN. STEIN join in
CHIEF Justice PORITZ's opinion. Jusitce POLLOCK
has filed a separate dissenting opinion, in which Justice
COLEMAN joins. Justice COLEMAN has filed a
separate dissenting opinion.
OPINION BY: PORITZ
OPINION
[*92] [**904] The opinion of the Court was
delivered by
PORITZ, [***12] C.J.
We granted leave to appeal, 143 N.J. 480, 672 A.2d
1164 (1996), to consider whether a caseworker from the
Child Protective Services Unit of the Division of Youth
and Family Services ("DYFS" or "Division") must give
Miranda warnings to a parent prior to a non-custodial
interview related to a child abuse investigation.
Defendant, P.Z., provided an inculpatory statement to a
DYFS caseworker during an at-home interview
conducted in the course of a Title Nine 1 inquiry. The
caseworker reported the substance of the statement to the
Ocean County Prosecutor's Office. When the prosecutor
later filed criminal charges, defendant moved to suppress
his statement. The trial court ruled defendant's statement
inadmissible, and the Appellate Division affirmed. 285
N.J. Super. 219, 666 A.2d 1000 (1995). We reverse.
1
"Title Nine" is used generally herein to
describe investigatory and other activities carried
out by the Division pursuant to its duties to
safeguard children under N.J.S.A. 9:6-1 to -8.73.
I
In November 1993, [***13] defendant's sevenweek-old daughter, C.Z., was admitted to Jersey Shore
Medical Center where she was diagnosed with and
treated for "Shaken Baby Syndrome." Shaken Baby
41
Syndrome was first recognized in the 1970s. Robin
Elizabeth Margolis, Healthtrends, Healthspan, June
1994, at 21. Babies who have been grabbed by the chest
or upper arms and violently shaken back and forth
exhibit certain injuries characteristic of the syndrome.
These babies may come to the attention of the medical
community because of "projectile vomiting, sleepiness,
poor appetite, eye hemorrhages, brain hemorrhages, and
seizures." Ibid. Although they generally [**905] do not
show signs of external injuries, babies who have been
violently shaken may become severely brain-damaged or
permanently blind. Some die. Ibid.; see also State v.
Compton, 304 N.J. Super. 477, 485-87, 701 A.2d 468
(App.Div.1997) (discussing recognition of Shaken Baby
[*93] Syndrome in "medical ... literature" and caselaw).
C.Z. suffered from both old and new bleeding in the
brain and from retinal bleeding in both eyes.
The hospital notified DYFS about C.Z.'s injuries as
mandated by N.J.S.A. 9:6-8.10 when there [***14] is
"reasonable cause to believe that a child has been
subjected to child abuse." DYFS commenced a Title
Nine investigation and reported the case to the Ocean
County Prosecutor's Office. Initial interviews conducted
by a DYFS caseworker with defendant, his wife, and
defendant's father did not reveal a plausible explanation
for C.Z.'s injuries. Shortly thereafter, on behalf of DYFS
and pursuant to N.J.S.A. 9:6-8.21 to -8.73 and N.J.S.A.
30:4C-12, the Attorney General instituted a civil action
against defendant and his wife. DYFS sought temporary
custody of C.Z. and her then two-year-old sister, M.Z.,
on the grounds that C.Z. had been injured by "other than
accidental means" and that the Division was unable to
ascertain who had caused the child's injuries. N.J.S.A.
9:6-8.21. Defendant and his wife were represented by
separate counsel in the Title Nine action.
The Chancery Division granted legal custody of both
children to DYFS but gave physical custody of M.Z. to
her paternal grandfather. C.Z. remained hospitalized.
Two subsequent orders were entered in January and
March. The first provided that M.Z. would remain with
her paternal grandfather, that defendant and his [***15]
wife would live at a different location and have no
unsupervised contact with M.Z., that defendant would
submit to a drug and alcohol evaluation, and that the
couple would submit to counseling, psychiatric
evaluation, and parenting skills classes. The second order
directed DYFS to obtain recommendations from the
treating therapist and from a physician about visitation
and family reunification.
Shortly before April 5, 1994, defendant's wife
informed her counselor that defendant had admitted
causing C.Z.'s injuries. C.Z. had been hospitalized for
five months and was expected to be released shortly. Her
mother's statement was therefore critical to [*94] the
placement of both C.Z. and her older sister. DYFS
caseworker Cheryl Ann Kobran attended a case planning
conference with her supervisors and the Deputy Attorney
General in charge of the Title Nine action to discuss how
to proceed with the new information provided by
defendant's wife. It was decided that Kobran should
interview P.Z. after contacting the Ocean County
Prosecutor's Office to determine whether the interview
would impede any pending investigation by that office.
On the morning of April 5, Kobran spoke to
Investigator Joseph [***16] Lazzaro at the Prosecutor's
Office and advised him that she planned to interview P.Z.
Investigator Lazzaro informed Kobran that, although the
Prosecutor's Office could not interview defendant
because he had a lawyer, there was no obstacle to DYFS
questioning P.Z. Lazzaro then asked Kobran to report the
results of her interview with defendant to the prosecutor.
Later that day, Kobran and another DYFS
caseworker, Donna Martinez, made an unannounced
home visit to defendant. Kobran had been working with
the family and was familiar to P.Z. She told defendant
she was there to ask him about his wife's statement that
he had admitted causing his infant daughter's injuries.
Defendant's father was present and Kobran asked him to
leave the room because he was talking. The father
complied with Kobran's request and waited outside on
the front porch while Kobran completed the interview.
Defendant acknowledged that he knew why Kobran
was there, but said his attorney had told him not to speak
to anyone. Kobran nonetheless encouraged defendant to
speak, telling him that she was there to complete the
DYFS investigation and to decide where to place C.Z.
upon her impending discharge from the hospital.
[***17] The caseworker also indicated concerns about
M.Z.'s placement because of the new information
obtained from P.Z.'s wife. Defendant admitted causing
C.Z.'s injuries by shaking the baby two or three times
because she was crying [**906] and he could not
console her. He said that he felt remorse for what had
happened and that he deserved to be punished. Kobran
advised defendant [*95] that his statement would be
turned over to the Prosecutor's Office and left with
Martinez.
Almost six months later, on September 28, 1994,
defendant was charged with two crimes of the second
degree: endangering the welfare of a child, in violation of
N.J.S.A. 2C:24-4a, and aggravated assault, in violation of
N.J.S.A. 2C:12-1b(1). Defendant pled not guilty to the
charges and his attorney moved to suppress his April 5
statement to Kobran. The Title Nine action concluded on
February 10, 1995 when custody of C.Z. and M.Z. was
granted to their mother.
A Miranda 2 hearing was held in May 1995.
Defendant claimed that his rights, as guaranteed by the
Fifth, Sixth, and Fourteenth Amendments to the United
42
States Constitution, had been violated by the State. The
trial court ruled that defendant's statement was
inadmissible [***18] at his criminal trial. The court
determined that defendant's Fifth Amendment rights had
not been violated because Kobran's interview with
defendant was non-custodial. However, the court
considered that defendant had invoked his Sixth
Amendment right to counsel when he told Kobran his
attorney had advised him not to talk to her. The court
found persuasive that a Title Nine action was pending,
that counsel had been appointed for defendant, that the
Prosecutor's Office was investigating the matter, and that
the prosecutor had knowledge that the "interview [was]
taking place."
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.
1602, 16 L. Ed. 2d 694 (1966).
The Appellate Division granted the State's motion
for leave to appeal and affirmed the suppression of P.Z.'s
statement. 285 N.J. Super. at 219, 666 A.2d 1000. The
panel focused on the "serious personal consequences"
that flowed from a Title Nine proceeding and concluded
that "there was at least some coercive element in the
environment of the situation confronting [***19]
defendant" because "parallel civil and criminal systems
[were] both operating against [him]." Id. at 227, 666 A.2d
1000. Despite "a paucity of case law" in support of its
position, the court held [*96] broadly that "fundamental
fairness and ... the Title Nine objective of child
protection" require that statements made to DYFS in the
context of a "Title Nine investigation may not be used
against a party in a criminal action unless there is advice
of Miranda rights and the affording of the Sixth
Amendment right to counsel." Id. at 229, 666 A.2d 1000.
II
-AThe New Jersey Legislature has enacted two
"separate and distinct" statutes to protect children from
abuse and neglect and to provide for the termination of
parental rights. New Jersey Div. of Youth & Family
Servs. v. K.M., 136 N.J. 546, 558, 643 A.2d 987 (1994).
Title Nine governs the adjudication of abuse and neglect
cases, while Title Thirty sets forth the procedures for the
permanent removal of children from their parents. See
New Jersey Div. of Youth & Family Servs. v. E.B., 137
N.J. 180, 185, 644 A.2d 1093 (1994). The express
purpose of Title Nine is to
provide for the protection of children
under 18 years of age who have had
serious injury [***20] inflicted upon
them by other than accidental means. It is
the intent of this legislation to assure that
the lives of innocent children are
immediately safeguarded from further
injury and possible death and that the
legal rights of such children are fully
protected.
[N.J.S.A. 9:6-8.8.]
Because child abuse and neglect are often difficult to
detect, Title Nine provides that "[a]ny person having
reasonable cause to believe that a child has been
subjected to child abuse or acts of child abuse" must
inform DYFS 3 immediately. N.J.S.A. 9:6-8.10. [*97]
[**907] The Division is required to investigate the
allegations, N.J.S.A. 9:6-8.11, -8.18; N.J.S.A. 30:4C-11, 12, and to take appropriate action to safeguard the child
or children from further injury, N.J.S.A. 9:6-8.8, -8.11, 8.18. When warranted by the circumstances, DYFS may
seek an order from the court placing the child in the
protective custody of the State. N.J.S.A. 9:6-8.18.
3 Organized under the Department of Human
Services, DYFS is the comprehensive social
services State agency charged with the "care,
custody, [and] guardianship" of children. N.J.S.A.
30:4C-4; see also N.J.S.A. 30:1-9, -12; N.J.S.A.
30:4C-26a. The Division investigates abuse and
neglect complaints involving children and
provides a wide range of programs and services
to protect children in need, N.J.A.C. 10:120-1.1b,
including: "protective services for abused and
neglected children, foster and group home
placements, residential placements, child care,
adoption services, counseling, advocacy and case
management, adult protective services and
personal attendant services." N.J.A.C. 10:1201.2c.
[***21] At the preliminary stage, before a
complaint is filed, Title Nine permits DYFS to identify
less serious cases that are suitable for adjustment.
N.J.S.A. 9:6-8.35. Upon written notice to the parent or
guardian, the Division may then hold a preliminary
conference to resolve such cases informally. Ibid.
Statements made by a potential respondent at the
preliminary conference are inadmissible in any later factfinding hearing under Title Nine or in any criminal
litigation prior to conviction. N.J.S.A. 9:6-8.36.
When a case is unsuitable for informal resolution,
DYFS is authorized to originate proceedings by filing a
formal complaint alleging abuse and neglect in the
Superior Court, Chancery Division, Family Part. N.J.S.A.
9:6-8.33, -8.34. Within three days, the child's parent or
guardian must appear in court, at which time the court is
required to inform "the parent or guardian of his [or her]
right to have an adjournment to retain counsel and
43
consult with him [or her]." N.J.S.A. 9:6-8.43a. Indigent
parents or guardians must be advised by the court of their
right to apply for an attorney through the Office of the
Public Defender. Ibid.; see also E.B., [***22] supra, 137
N.J. at 186, 644 A.2d 1093; New Jersey Div. of Youth
and Family Servs. v. T.C., 251 N.J. Super. 419, 435, 598
A.2d 899 (App.Div.1991), certif. denied, 146 N.J. 564,
683 A.2d 1160 (1992).
DYFS caseworkers maintain frequent contact with
the family, meeting to discuss family history and
dynamics, and ways to remediate problems leading to
abuse or neglect. The Division may seek appropriate
protective orders from the court requiring
[*98]
supervised visitation and rehabilitative services for both
parents and children. N.J.S.A. 9:6-8.18, -8.28, -8.31, 8.50e, -8.51, -8.58.
Title Nine contemplates criminal prosecution of acts
of abuse and neglect that constitute crimes. 4 N.J.S.A.
9:6-8.36a specifically requires that DYFS "immediately
report all [***23] instances of suspected child abuse
and neglect ... to the county prosecutor." Likewise, once
the Division files a child abuse complaint with the
Family Part, the court must immediately send a copy of
the complaint to the county prosecutor. N.J.S.A. 9:68.25a. Although DYFS records are subject to strict
confidentiality requirements, an exception permits DYFS
to provide information to law enforcement agencies
investigating child abuse or neglect and to "[a] grand jury
upon its determination that access to such records is
necessary." 5 N.J.S.A. 9:6-8.10a(b)(2)(7). Title Nine also
permits the prosecutor to institute a criminal action
against the parent or guardian even as the child abuse
action continues in the Family Part. N.J.S.A. 9:6-8.24d, 8.25c.
4 N.J.S.A. 9:6-3 provides that it is a crime of the
fourth degree for a person having custody or
control of a child to "abuse, abandon, be cruel to
or neglectful of such child." Persons accused of
abuse and neglect of a serious nature are
prosecuted under the New Jersey Criminal Code
(e.g., offenses of the first, second, third and fourth
degrees, including assault, N.J.S.A. 2C:12-1,
sexual assault, N.J.S.A. 2C:14-2, and endangering
the welfare of a child, N.J.S.A. 2C:24-4).
5 On July 30, 1997, the Comprehensive Child
Abuse Prevention and Treatment Act, which
relaxes the confidentiality restrictions to which
DYFS is subject, was enacted. L. 1997, c. 175.
The Act not only allows disclosure of DYFS
records in certain instances to the legal counsel of
a child, parent or guardian, or to the parent or
guardian himself or herself, but also allows
disclosure to the public of "the findings or
information about a case of child abuse or neglect
which has resulted in a child fatality or near
fatality." Id. § 16.
[***24] The Division's regulations set forth
guidelines and establish procedures for determining
which cases must be referred to the prosecutor's office
and how referrals are to be made. N.J.A.C. 10:129-1.1 to
-1.5. The caseworker must report matters involving:
[**908] the death of a child; suspected sexual abuse; any
injury or [*99] condition requiring hospitalization or
emergency room treatment; any injury requiring more
than superficial medical attention (e.g., broken bones);
repeated instances of physical violence committed
against a child; substantial deprivation of necessary care
over a period of time; or abandonment of a child.
N.J.A.C. 10:129-1.3a(1)-(6). As soon as DYFS has
information that the child's condition or injury fits one of
the enumerated categories and "the caseworker has
reason to believe that the condition or injury was not
accidentally caused," a referral is required. N.J.A.C.
10:129-1.3d; see also N.J.A.C. 10:129-1.3e. If the
prosecutor decides to bring a criminal case, the
caseworker must be advised. N.J.A.C. 10:129-1.5c.
-BJustice O'Hern has spoken eloquently of the
intrusion of the real world into "that model of the family
that our popular culture [***25] portrays." New Jersey
Div. of Youth and Family Servs. v. A.W., 103 N.J. 591,
599, 512 A.2d 438 (1986). In the real world children are
abused and neglected, most often in their homes where
we expect them to be kept safe from harm. Title Nine
responds to the terrible reality that not all children are
safe with their families by providing for the removal of
abused and neglected children and for appropriate
protective orders when necessary to ensure their safety.
The inquiry in every case focuses on the best interests of
the child.
At the same time, the goal of family rehabilitation
and reunification--the return of the child to the family--is
a priority "unless that goal is not in the best interest of
the child." N.J.S.A. 30:4C-60. The goal recognizes both
the value to children of being restored to their families
when possible, and the rights of parents to be with and to
raise their children. See In re Guardianship of J.C., 129
N.J. 1, 7-8, 608 A.2d 1312 (1992); A.W., supra, 103 N.J.
at 599-600, 512 A.2d 438. The abused child's interest is
paramount; only when the child can be protected within
the family will [*100] the parents' interest in the care
and custody of their child also be realized.
The criminal [***26] justice system acts separately,
but in tandem with the civil system, to investigate and
prosecute those who abuse and neglect children. To the
extent that the prospect of criminal prosecution serves as
a deterrent to child abuse, the criminal justice system also
protects children. See Douglas J. Besharov, Child Abuse:
Arrest and Prosecution Decision-Making, 24 Am. Crim.
44
L. Rev. 315, 321 (1986). In some cases, the offender's
removal from the home by prosecutorial authorities is in
the best interests of the child. Id. at 333.
This case requires us to consider the rights of a
parent who is under investigation for child abuse by
DYFS pursuant to Title Nine and who may be subject to
criminal prosecution for the same abusive behavior.
III
The State contends that defendant's Fifth
Amendment privilege against self-incrimination was not
violated when he spoke to the DYFS caseworker on
April 5, 1994. It is the State's position that the
caseworker was not obligated to give Miranda warnings
or, alternatively, to cease questioning defendant when he
said that his lawyer told him not to speak to anyone. The
State denies that defendant was coerced into admissions
of child abuse [***27] by an implied threat that his
children would not be returned unless he made a
statement.
-AThe Fifth Amendment privilege against selfincrimination, made applicable to the states through the
Fourteenth Amendment, provides that "[n]o person ...
shall be compelled in any criminal case to be a witness
against himself." U.S. Const. amend. V. As explained in
Malloy v. Hogan, 378 U.S. 1, 8, 84 S. Ct. 1489, 1493, 12
L. Ed. 2d 653, 659 (1964), the Fifth Amendment protects
"the right [*101] of a person to remain silent unless he
chooses to speak in the unfettered exercise of his own
free will, and to suffer no penalty ... for such silence." It
reflects our understanding that government is
"constitutionally compelled to establish guilt by evidence
independently and freely secured, and [**909] may not
by coercion prove a charge against an accused out of his
own mouth." Ibid.
In New Jersey, the privilege is derived from the
common law and is codified in our statutes and rules.
State v. Reed, 133 N.J. 237, 250, 627 A.2d 630 (1993);
see N.J.S.A. 2A:84A-19; N.J.R.E. 503. Its importance is
not diminished by the lack of specific constitutional
articulation; rather, from [***28] colonial times, "New
Jersey has recognized the right against self-incrimination
and has consistently and vigorously protected that right."
Reed, supra, 133 N.J. at 250, 627 A.2d 630.
A person invoking the privilege against selfincrimination may do so "'in any ... proceeding, civil or
criminal, formal or informal, where the answers might
tend to incriminate him in future criminal proceedings.'"
Minnesota v. Murphy, 465 U.S. 420, 426, 104 S. Ct.
1136, 1141, 79 L. Ed. 2d 409, 418 (1984) (quoting
Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 322,
38 L. Ed. 2d 274, 281 (1973)); Banca v. Town of
Phillipsburg, 181 N.J. Super. 109, 114-15, 436 A.2d 944
(App.Div.1981); see New Jersey Div. of Youth & Family
Servs. v. S.S., 275 N.J. Super. 173, 179, 645 A.2d 1213
(App.Div.1994). However, the privilege is not selfexecuting under either federal or state law and must be
invoked by anyone claiming its protection. Murphy,
supra, 465 U.S. at 428-29, 104 S. Ct. at 1142-43, 79 L.
Ed. 2d at 419-20; Reed, supra, 133 N.J. at 251, 627 A.2d
630. Generally, when the privilege is not asserted and the
person questioned chooses to answer, the choice to
respond [***29] is considered voluntary. Murphy,
supra, 465 U.S. at 429, 104 S. Ct. at 1143, 79 L. Ed. 2d
at 420; State v. Fary, 19 N.J. 431, 435, 117 A.2d 499
(1955).
As is well known, an exception to this general rule
was created by the United States Supreme Court more
than thirty years ago in Miranda v. Arizona, 384 U.S.
436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 [*102] (1966),
wherein the Court determined that a custodial
interrogation by law enforcement officers is inherently
coercive, automatically triggering the Fifth Amendment
privilege against self-incrimination. "Miranda warnings"
are now household words in the United States. Today
even schoolchildren know that when a person in police
custody is questioned by law enforcement, he must be
told that he has the right to remain silent, that any
statement he makes may be used against him, that he has
the right to an attorney, and that if he cannot afford an
attorney, one will be provided for him. Id. at 444, 86 S.
Ct. at 1612, 16 L. Ed. 2d at 706-07.
The predicate requirements of Miranda are that the
defendant must be in custody and the interrogation must
be carried out by law enforcement. [***30] Id. at 444,
86 S. Ct. at 1612, 16 L. Ed. 2d at 706. Miranda turns on
the potentially inquisitorial nature of police questioning
and the inherent psychological pressure on a suspect in
custody. Id. at 445-58, 86 S. Ct. at 1612-19, 16 L. Ed. 2d
at 707-14. The rule Miranda enunciates is prophylactic,
designed to overcome the singular problems associated
with custodial interrogation after a defendant is arrested
or otherwise confined. Murphy, supra, 465 U.S. at 433,
104 S. Ct. at 1145, 79 L. Ed. 2d at 423; Beckwith v.
United States, 425 U.S. 341, 346, 96 S. Ct. 1612, 1616,
48 L. Ed. 2d 1, 7 (1976).
-BDefendant acknowledges he was not in custody
when Cheryl Ann Kobran questioned him. We note that
application of the totality of the circumstances test
followed by both the federal and New Jersey courts
would defeat a claim that he was in custody at the time of
his interview. See Stansbury v. California, 511 U.S. 318,
322, 114 S. Ct. 1526, 1528-29, 128 L. Ed. 2d 293, 298
(1994); State v. Pierson, 223 N.J. Super. 62, 67, 537 A.2d
1340 (App.Div.1988). Under federal law, the "ultimate
45
inquiry is simply whether [***31] there is a 'formal
arrest or restraint on freedom of movement' of the degree
associated with a formal arrest." California v. Beheler,
[*103] 463 U.S. 1121, 1125, 103 S. Ct. 3517, 3520, 77
L. Ed. 2d 1275, 1279 (1983) (internal quotation marks
omitted). Our courts have also recognized that "custody
in the Miranda sense does not necessitate a formal arrest,
'nor does it require physical restraint in a police station,
nor the application of handcuffs, and may occur in a
suspect's home or a public place other than a police
station.'" [**910] State v. Lutz, 165 N.J. Super. 278,
285, 398 A.2d 115 (App.Div.1979) (quoting State v.
Godfrey, 131 N.J. Super. 168, 175, 329 A.2d 75
(App.Div.1974)), aff'd, 67 N.J. 267, 337 A.2d 371 (1975).
The critical determinant of custody is whether there has
been a significant deprivation of the suspect's freedom of
action based on the objective circumstances, including
the time and place of the interrogation, the status of the
interrogator, the status of the suspect, and other such
factors. See State v. Coburn, 221 N.J. Super. 586, 59697, 535 A.2d 531 (App.Div.1987), certif. denied, 110 N.J.
300, 540 A.2d 1281 (1988); In re A.B., 278 N.J. Super.
380, 384, 651 A.2d 118 (Ch.Div.1994); [***32] see also
J.F. Ghent, What Constitutes "Custodial Interrogation"
Within Rule of Miranda v. Arizona Requiring That
Suspect be Informed of His Federal Constitutional Rights
Before Custodial Interrogation, 31 A.L.R.3d 565, 577
(1970).
The circumstances surrounding defendant's
interview on April 5 fail to demonstrate the coercive
atmosphere and restraint of freedom that comprises a
custodial interrogation. Defendant was interviewed in his
home, during the day, with his father nearby. He had
complete freedom to come and go as he pleased.
Although two caseworkers were present, he was
questioned by only one, Kobran, with whom he was
familiar. The caseworker's questions were not threatening
and the interview was not lengthy. In short, none of the
indicia of coercion were present in the circumstances of
the interview.
Because defendant was not in custody when he was
questioned by Kobran, we need not reach the question
whether Kobran was acting as a law enforcement officer.
This case is thus distinguishable from the two previous
New Jersey cases which held that [*104] DYFS
workers were acting as law enforcement officers when
they questioned defendants who were incarcerated. See
State [***33] v. Helewa, 223 N.J. Super. 40, 537 A.2d
1328 (App.Div.1988); State v. Flower, 224 N.J. Super.
208, 539 A.2d 1284 (Law Div.1987), aff'd, 224 N.J.
Super. 90, 539 A.2d 1223 (App.Div.1988). In Helewa,
supra, the defendant had been advised of his Miranda
rights upon his arrest for sexually assaulting his two
daughters. 223 N.J. Super. at 42, 537 A.2d 1328. He was
subsequently interviewed by a caseworker while
incarcerated in the Middlesex County Adult Corrections
Center. Ibid. The court held that "the DYFS caseworker
must be equated with a law enforcement officer for
purposes of Miranda when conducting a custodial
interview." Id. at 52, 537 A.2d 1328. Similarly, in
Flower, supra, the defendant was interviewed by a
caseworker when he was incarcerated in a county jail
after having been arrested and charged with the sexual
assault of a three-and-a-half year old child. 224 N.J.
Super. at 211, 539 A.2d 1284. After observing, "[i]t is
not all questioning by a social service worker that will
constitute acting in a law enforcement capacity," id. at
218, 539 A.2d 1284, the court held that, in the
circumstances, the caseworker should have given the
defendant Miranda warnings, id. at 220, 539 A.2d 1284.
In both cases, the defendants had been [***34] arrested
and confined at the time of the interviews.
Defendant claims he "did not lose all of his Fifth
Amendment protections simply because he was not in
custody at the time he was questioned." He asserts that
the privilege against self-incrimination applied to the
DYFS interview and that he properly invoked the
privilege when he stated that his attorney had advised
him not to speak with Ms. Kobran. Certainly, defendant
retained his Fifth Amendment protections during his
interview with Kobran. The question is whether, in the
circumstances, Miranda warnings were required or
whether it rested with defendant to assert his privilege.
See Murphy, supra, 465 U.S. at 429-30, 104 S. Ct. at
1143-44, 79 L. Ed. 2d at 420-21. If Miranda warnings
were required, defendant's reference to his attorney's
advice [*105] would have been tantamount to an
invocation of his right to remain silent.
Again, despite defendant's assertions to the contrary,
the issue turns on his non-custodial status. Had defendant
been in custody at the time of the interview, under New
Jersey law his "request, 'however ambiguous,' to
terminate questioning" would have been sufficient to
trigger his right [***35] to remain silent. State v.
Hartley, 103 N.J. 252, 263, 511 A.2d 80 (1986) (quoting
State v. Kennedy, 97 N.J. 278, 288, 478 A.2d 723
(1984)). Likewise, [**911] his invocation of the right to
counsel "need not [have been] articulate, clear, or explicit
...; any indication of a desire for counsel, however
ambiguous, will trigger entitlement to counsel." Reed,
supra, 133 N.J. at 253, 627 A.2d 630 (observing also that
"the state right against self-incrimination is based on the
understanding that the privilege is defined by ... ancillary
rights, like the right to counsel during custodial
interrogation"); see also State v. Chew, 150 N.J. 30, 63,
695 A.2d 1301 (1997) (holding that "defendant's request
that his mother contact his attorney was an equivocal
invocation of the right to counsel that had to be clarified
before questioning could take place").
However, defendant was not in custody when he
answered the caseworker's questions. Although he was
46
free to remain silent and to insist upon having his lawyer
present, the circumstances were not such as to require
Kobran to stop the interview when defendant said that his
lawyer had advised him not to discuss the matter with
anyone. Later P.Z. testified at [***36] his suppression
hearing that he had an agreement with his wife to inform
DYFS "[t]hat I shook the baby." P.Z.'s version of the
events leading up to and including the interview with
Kobran confirm that defendant had decided, prior to
Kobran's visit, and irrespective of his lawyer's
admonition, to admit shaking his daughter. That decision
was his to make.
We conclude that defendant's reference to his
attorney did not, in this setting, invoke his right to remain
silent such that Kobran was required to terminate the
interview.
[*106] -CCustodial interrogations by law enforcement officers
are not the only special circumstances in which the Fifth
Amendment privilege against self-incrimination is selfexecuting. Murphy, supra, 465 U.S. at 434, 104 S. Ct. at
1145-46, 79 L. Ed. 2d at 423-24. Both the United States
Supreme Court and our New Jersey courts have
consistently held that the state may not force an
individual to choose between his or her Fifth Amendment
privilege and another important interest because such
choices are deemed to be inherently coercive. See
Lefkowitz v. Cunningham, 431 U.S. 801, 805-08, 97 S.
Ct. 2132, 2135-37, 53 L. Ed. 2d 1, [***37] 6-9 (1977)
(holding unconstitutional statute that required political
party officer to testify without immunity before grand
jury or forfeit his office and be barred from holding
another party office); Turley, supra, 414 U.S. at 75-84,
94 S. Ct. at 321-25, 38 L. Ed. 2d at 281-85 (holding
unconstitutional statute that compelled public contractors
to testify without immunity concerning their state
contracts or forfeit those contracts and be disqualified
from future state dealings); State v. Clark, 58 N.J. 72, 8392, 275 A.2d 137 (1971) (holding both Fifth Amendment
and public policy require that neither unmarried welfare
applicant nor father of her children could be prosecuted
for fornication where applicant was required to institute
bastardy proceedings against father to obtain benefits);
Hirsch v. New Jersey State Bd. of Med. Exam'rs, 252 N.J.
Super. 596, 605-09, 600 A.2d 493 (App.Div.1991)
(holding physicians could not be compelled to answer
questions about drug use upon threat of suspension or
non-renewal of medical license without accord of
immunity), aff'd, 128 N.J. 160, 607 A.2d 986 (1992); see
also Garrity v. New Jersey, 385 U.S. 493, 499-500, 87 S.
Ct. 616, 620, [***38] 17 L. Ed. 2d 562, 566-67 (1967)
(holding that, consistent with guarantees of Fourteenth
Amendment, State may not compel police officers to
answer work-related questions or lose their employment).
These cases are based on the principle that the Fifth
Amendment is violated "when a State compels testimony
by threatening to inflict potent sanctions unless the
constitutional
[*107]
privilege is surrendered."
Cunningham, supra, 431 U.S. at 805, 97 S. Ct. at 2135,
53 L. Ed. 2d at 7.
In this case, defendant asserts that his statement was
obtained in a similarly coercive manner because he was
faced with an implied threat that his children would not
be returned unless he admitted responsibility for his
youngest daughter's injuries. Defendant testified that
"someone," not Kobran or Martinez, had advised him and
his wife that "we would get our children back if one of us
would confess--whether we did it or not--to the injuries."
This "someone," it is claimed, [**912] placed undue
pressure on defendant to admit child abuse in order to
regain custody of his children.
We begin with the general observation that, by
acknowledging their abusive behaviors, parents can
begin to understand [***39] and reform those behaviors,
and that acknowledgment is an important step in the
rehabilitation of the family. See In re H.R.K., 433 N.W.2d
46, 50 (Iowa.Ct.App.1988) ("[T]he requirement that the
parents acknowledge and recognize the abuse before any
meaningful change can occur is essential to meeting the
child's needs."); In re S.A.V., 392 N.W.2d 260, 264
(Minn.Ct.App.1986) ("The trial court's finding that the
parents need to recognize the cause of the children's
injuries before any meaningful change can occur
recognizes that a parent who acknowledges the need for
professional help is more amenable to treatment than one
who denies the need for such help."). At P.Z.'s
suppression hearing, the DYFS caseworker confirmed
the view that "in general" parental counseling is more
effective when the parents "admit what they did wrong"
and that parents who are trying to deal with their
problems "ultimately do better in getting their children
back." Her understanding is supported by theories about
rehabilitation in other contexts. See, e.g., State v.
Leggeadrini, 75 N.J. 150, 160, 380 A.2d 1112 (1977)
(discussing criminal defendant's amenability to
rehabilitation upon "acknowledgment [***40]
of
grievous wrongdoing" as mitigating factor to be taken
into account in sentencing).
[*108] Although an admission of abuse may aid in
the rehabilitative process, termination of custody is not
automatic on invocation of the privilege. We therefore
consider inapplicable those cases holding
unconstitutional a requirement that an individual choose
between the right to remain silent and another vital
interest. We note that the Supreme Courts of Minnesota
and Vermont have reached similar conclusions. See In re
J.W., 415 N.W.2d 879 (Minn.1987); In re M.C.P., 153 Vt.
275, 571 A.2d 627 (1989). In In re J.W., supra, the
Minnesota Supreme Court was confronted with "a courtordered treatment plan requiring [the parents of neglected
47
children] to make incriminating disclosures as part of
their rehabilitation therapy." 415 N.W.2d at 880. When
the parents invoked their Fifth Amendment privilege, the
state's attorney indicated his intention to file for
termination of parental rights. Id. at 882. "This threat,"
the court said, "is genuine, direct, and immediate, and the
penalty threatened is a 'potent sanction.'" Ibid. (citing
Cunningham, supra, 431 U.S. at 805, 97 [***41] S. Ct.
at 2135, 53 L. Ed. 2d at 7). The court held that the order
of the lower court, "to the extent it requires appellants to
incriminate themselves, violates [their] Fifth Amendment
rights and is unenforceable."
The Minnesota Supreme Court's holding is
consistent with the decisions of the United States
Supreme Court and this Court in cases where individuals
were compelled to testify or lose a previously held
benefit. See supra at 106-107, 703 A.2d at 911-912. Of
particular relevance to this case, however, is the court's
further discussion about the scope of the privilege when
there is no direct threat but, instead, a possibility that
therapeutic outcomes will be determinative of parental
rights. The court considered the parents' choice whether
or not to admit abuse unprotected by the Fifth
Amendment:
While the state may not compel therapy
treatment that would require appellants to
incriminate themselves, it may require
parents to otherwise undergo treatment.
Therapy, however, which does not include
incriminating disclosures, may be
ineffective; and ineffective therapy may
hurt the parents' chances of regaining their
children. These consequences lie outside
[***42] the protective ambit of the Fifth
Amendment.
....
[*109] ... In the lexicon of the Fifth
Amendment, the risk of losing the
children for failure to undergo meaningful
therapy is neither a "threat" nor a
"penalty" imposed by the state. It is
simply a consequence of the reality that it
is unsafe for children to be with parents
who are abusive and violent.
[In re J.W., supra, 415 N.W.2d at
883-84 (footnote omitted).]
Certainly, the state could decide in a particular case
that a parent should be compelled [**913] to speak to a
counselor, with the result that any incriminating
statement could not later be used in a criminal
prosecution. As the dissent points out, infra at 129-130,
703 A.2d at 923 (Pollock, J., dissenting), the Minnesota
Court recognized that this is a choice left to the state. In
discussing this issue, however, the dissent confuses the
public policy choice faced by the State with the legal
issue of admissibility. Ibid.
P.Z. was not asked to choose between his children
and the exercise of his right to remain silent. If he abused
his daughter, and if he refused to acknowledge his acts of
abuse, he would find it difficult [***43] to demonstrate
that he could care for his children without harming them.
This was the risk he faced. Kobran did not threaten him
with termination of his parental rights if he did not
confess; nor did she tell him that the only way he could
get his children back was to confess. We conclude that
defendant's statement to Kobran was not coerced in
violation of his Fifth Amendment privilege against selfincrimination.
IV
The State also claims that defendant's April 5
statement was not obtained in violation of his Sixth
Amendment right to counsel. The Sixth Amendment
provides that "[i]n all criminal prosecutions, the accused
shall enjoy the right ... to have the Assistance of Counsel
for his defense." U.S. Const. amend. VI. Once the right to
counsel has attached, "whether by way of formal charge,
preliminary hearing, indictment, information, or
arraignment," Kirby v. Illinois, 406 U.S. 682, 688-89, 92
S. Ct. 1877, 1882, 32 L. Ed. 2d 411, 417 (1972), it can be
exercised by the accused at all critical stages of a
criminal proceeding, see White v. Maryland, [*110] 373
U.S. 59, 59-60, 83 S. Ct. 1050, 1051, 10 L. Ed. 2d 193,
194 (1963), including questioning [***44] by law
enforcement personnel, Brewer v. Williams, 430 U.S.
387, 397-401, 97 S. Ct. 1232, 1239-41, 51 L. Ed. 2d 424,
436-38 (1977).
The right to counsel embodied in Article I,
Paragraph 10 of the New Jersey Constitution is virtually
identical to the Sixth Amendment right to counsel, and
similarly attaches upon the return of an indictment or like
process because, prior to that point in time, "the State's
investigative effort ... is at a preliminary stage, ... the
police may still be attempting ... to solve the crime[,] ...
[and] the State's decision to prosecute has not solidified."
State v. Tucker, 137 N.J. 259, 290, 645 A.2d 111 (1994),
cert. denied, 513 U.S. 1090, 115 S. Ct. 751, 130 L. Ed. 2d
651 (1995). Tucker fixes upon the return of the
indictment because that event
transforms the relationship between the
State and the defendant. By obtaining the
indictment, the State represents that it has
sufficient evidence to establish a prima
facie case. Once the indictment is
returned, the State is committed to
48
prosecute the defendant.
[Id. at 287, 645 A.2d 111
(quoting State v. Sanchez,
129 N.J. 261, 276, [***45]
609 A.2d 400 (1992)).]
Although this Court has held that the right to counsel
found in Article I, Paragraph 10 of the New Jersey
Constitution can provide greater protection than the Sixth
Amendment right to counsel, see Sanchez, supra, 129
N.J. at 275-77, 609 A.2d 400, we have read Article I,
Paragraph 10 as consonant with the Federal Constitution
on the issue of when the right to counsel is triggered,
Tucker, supra, 137 N.J. at 291, 645 A.2d 111.
In this case, when defendant was interviewed by
Kobran on April 5, 1994, he was not the subject of a
criminal prosecution since, at that time, he had not been
arrested, indicted or arraigned. It was not until September
28, 1994, almost six months after Kobran questioned
P.Z., that an indictment was issued against him. During
the pre-indictment period of criminal investigation, a law
enforcement officer could have questioned defendant
without implicating his Sixth Amendment or Article I
right to counsel. See Kirby, supra, 406 U.S. at 688-89, 92
S. Ct. at 1881-82, 32 [*111] L. Ed. 2d at 417; Tucker,
supra, 137 N.J. at 290-91, 645 A.2d 111. It follows that
an interview by a social worker would not trigger the
right to counsel during [***46] this period.
The court below extended the Sixth Amendment
right to counsel to Title Nine civil actions in which a
complaint has been [**914] filed. However, the right to
counsel guaranteed by both the Sixth Amendment and
Article I applies by its terms to criminal prosecutions
only. See Gideon v. Wainwright, 372 U.S. 335, 339-45,
83 S. Ct. 792, 794-97, 9 L. Ed. 2d 799, 802-06 (1963)
(recognizing Sixth Amendment right to counsel extends
to state criminal prosecutions); Johnson v. Zerbst, 304
U.S. 458, 462, 58 S. Ct. 1019, 1022, 82 L. Ed. 1461,
1465 (1938) (applying Sixth Amendment right to counsel
in federal criminal prosecution); Tucker, supra, 137 N.J.
at 287, 645 A.2d 111 (applying Article I right to counsel
in criminal prosecution); Sanchez, supra, 129 N.J. at
276-77, 609 A.2d 400 (same). Defendant nonetheless
suggests that his fundamental interest in the care and
custody of his children, see Santosky v. Kramer, 455 U.S.
745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606
(1982); In re Promulgation of Guardianship Servs. Regs.,
103 N.J. 619, 634, 512 A.2d 453 (1986), either requires
counsel to be present when defendant is questioned by
DYFS [***47] or requires his comment about his
lawyer's advice to be considered an invocation of the
right to counsel. Whether the question is framed in terms
of rights ancillary to the right to remain silent, see Reed,
supra, 133 N.J. at 250-53, 627 A.2d 630, or in terms of
the Article I, Paragraph 10 right to counsel, we decline to
expand the rights of Title Nine respondents to include
protections accorded criminal defendants after they have
been indicted or taken into custody.
Title Nine does not limit the use of statements made
by respondents except where DYFS holds an informal
preliminary conference in less serious cases. See N.J.S.A.
9:6-8.36 (prohibiting admission "into evidence" at Title
Nine hearing or in criminal trial of statements made
during preliminary conference). The statute contemplates
that cases involving "imminent physical harm or actual
physical harm" will be directed to the Superior Court "on
[*112] a priority basis." N.J.S.A. 9:6-8.35f. Title Nine
specifically requires the court to advise parents of their
right to counsel at the first hearing after DYFS files a
complaint in Superior Court alleging abuse and neglect.
N.J.S.A. 9:6-8.43a. This requirement ensures that parents
[***48] have a meaningful opportunity to be heard
during Title Nine proceedings and that their fundamental
interest in the custody and care of their children is
protected.
Presumably, the Legislature considered that the right
to counsel set forth in the statute provides safeguards
sufficient to protect persons alleged by DYFS to have
abused or neglected their children. In contrast, the
Appellate Division imported Sixth Amendment
protections into Title Nine civil proceedings. Defendant
asks us to do the same. He asserts "that [because] both
the governing statutes and our own State Constitution
envision a right to counsel once a complaint has been
filed in a Title Nine case," he is entitled to have counsel
present whenever a DYFS caseworker conducts a child
abuse investigation.
In our view, acceptance of defendant's argument
would shift the primary focus of Title Nine from the right
of children to be protected from abuse and neglect to the
right of parents to the custody of their children. Those
rights are not in equipoise. Only when the family can be
rehabilitated and the children safely returned can the
parents' rights be fully realized. There is in these cases a
complex of interests to [***49]
be considered,
suggesting to a court that some caution is appropriate.
Forcing a DYFS caseworker to choose between
providing Miranda warnings and foreclosing the use in
criminal proceedings of information obtained in the
course of an abuse and neglect investigation will not
inure to the protection of children. We decline to tip the
balance by requiring additional protections for the
parents of abused children to be imported from our
criminal jurisprudence into Title Nine proceedings.
V
The State also asserts that suppression of defendant's
49
statement to Kobran is not required by the Due Process
Clause of [*113] the Fourteenth Amendment of the
United States Constitution because defendant made the
statement voluntarily. Long before Miranda v. Arizona,
supra, the United States Supreme Court held that certain
"interrogation techniques ... are so offensive to a [**915]
civilized system of justice that they must be condemned
under the Due Process Clause." Miller v. Fenton, 474
U.S. 104, 109, 106 S. Ct. 445, 449, 88 L. Ed. 2d 405, 410
(1985) (citing Brown v. Mississippi, 297 U.S. 278, 56 S.
Ct. 461, 80 L. Ed. 682 (1936)). Miranda established a
[***50] per se rule to counteract the inherently coercive
nature of custodial interrogations by law enforcement; it
did not eliminate the due process requirement that all
statements given during an interrogation must be
voluntary. See id. at 109-10, 106 S.Ct. at 449, 88 L.Ed.2d
at 410-11.
would be cut off, and her children taken away from her,
if she did not 'cooperate.'" Id. at 534, 83 S. Ct. at 920, 9
L. Ed. 2d at 926. The Court described the circumstances
of the arrest as follows:
To determine whether a statement was made
voluntarily, both the federal and New Jersey courts
consider whether it was "the product of an essentially
free and unconstrained choice by its maker," in which
case the statement may be used against the defendant, or
whether the defendant's "will has been overborne and his
capacity for self-determination critically impaired," in
which case use of the statement "offends due process."
Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.
Ct. 2041, 2047, 36 L. Ed. 2d 854, 862 (1973); see State v.
Galloway, 133 N.J. 631, 654, 628 A.2d 735 (1993). This
issue can be resolved only after an assessment of the
"totality of the circumstances" surrounding the statement.
Arizona v. Fulminante, 499 U.S. 279, 285-86, 111 S. Ct.
1246, 1251-52, 113 L. Ed. 2d 302, 315 (1991); Galloway,
supra, 133 N.J. at 654, 628 A.2d 735 (observing also
[***51] that, in New Jersey, the State must prove
voluntariness beyond a reasonable doubt). This test is
much like the test used to determine whether a defendant
is in custody under the Fifth Amendment, except that a
voluntariness review includes consideration of "both the
characteristics of the accused and the details of the
interrogation." Schneckloth, supra, 412 U.S. at 226, 93 S.
Ct. at 2047, 36 L. Ed. 2d at 862; see also State v. Miller,
76 N.J. 392, 402, 388 A.2d 218 (1978) (listing relevant
factors such as "age, [*114] education and intelligence,
advice as to constitutional rights, length of detention,
whether the questioning was repeated and prolonged in
nature, and whether physical punishment or mental
exhaustion was involved").
The Court held that a confession made under such
circumstances was coerced and could "not be deemed
'the product of a rational intellect and a free will.'" Ibid.
(citation omitted).
P.Z. claims that his statement was not made
voluntarily. He relies on two cases in which confessions
were suppressed after specific threats by police officers
that a defendant's children would be taken away. In
Lynumn v. Illinois, 372 U.S. 528, 83 S. Ct. 917, 9 L. Ed.
2d 922 (1963), the defendant made an oral admission
during the course of an arrest. The admission was
procured after the arresting officers told the defendant
"that [***52] state financial aid for her infant children
These threats were made while she was
encircled in her apartment by three police
officers and a twice convicted felon who
had purportedly "set her up." There was
no friend or advisor to whom she might
turn. She had had no previous experience
with the criminal law, and had no reason
not to believe that the police had ample
power to carry out their threats.
[Ibid.]
Similarly, in United States v. Tingle, 658 F.2d 1332
(9th Cir.1981), the court held that a confession obtained
after FBI Special Agents led defendant to believe that
"she would never see her son again," id. at 1334 n.2, was
coerced even though the defendant signed a "standard
FBI Advice of Rights form," id. at 1333. The
interrogation was conducted [***53] by two agents in
their car. They told defendant that she faced a maximum
of forty years imprisonment for the crimes of which she
was suspected. Id. at 1336. One of the agents used his
knowledge that the defendant had a two-year-old child to
suggest to the defendant that "she had 'a lot at stake.'" Id.
at 1334. The court found that "the purpose and objective
of the interrogation was to cause Tingle to fear that, if
[*115] she failed to cooperate, she would not see her
young child again for a long time." Id. at 1335. Applying
the totality of the circumstances [**916] analysis, the
court concluded that Tingle's confession was "not 'the
product of a rational intellect and free will' and was
involuntary." Id. at 1337 (citation omitted).
The circumstances in Lynumn and Tingle are
distinguishable from the circumstances in this case. Here,
in examining the relevant characteristics of the accused,
we find that defendant had obtained a high school
equivalency diploma and was employed. He was
represented by counsel in the Title Nine proceedings and
was assured of a hearing on the issue whether the family
should be reunited. Although defendant claims that he
feared his children would not [***54] be returned if he
did not confess, his subjective fear did not derive from a
threat amounting to coercion under the Fifth
Amendment. A defendant's state of mind is not
dispositive of whether that defendant's "will has been
overborne and his capacity for self-determination
50
critically impaired." Schneckloth, supra, 412 U.S. at 225,
93 S. Ct. at 2047, 36 L. Ed. 2d at 862.
Defendant was not in custody when he was
interviewed, and his statement was not obtained in a
coercive environment. A caseworker with whom he was
familiar questioned defendant in his home, with his
father nearby. Defendant was free to ask Kobran and
Martinez to leave, and did not suggest that they do so.
Most important, defendant had a lawyer in the Title Nine
proceeding who had advised him not to speak. He chose
not to take that advice after discussion with his wife and
joint agreement to a "plan" by which he would admit to
acts of abuse.
The sole purpose of the interrogations conducted in
Lynumn and Tingle was to aid law enforcement in
preparing a criminal case against defendants. The officers
in those cases frightened the defendants into confessing
by threatening them with the loss of [***55] their
children. The circumstances of this case are markedly
different. As we have previously discussed, the
Division's objective is to protect children from abuse and
neglect and not to promote law enforcement. Kobran's
purpose in urging defendant [*116] to cooperate and to
talk about how the injury to C.Z. occurred was salutary:
she sought information in aid of C.Z.'s placement.
Child abuse investigations are emotionally charged
and difficult. They are critical to the child who has been
or may be injured. Too often there is no explanation for
serious injuries, and the child's parents are the focus of
the inquiry. The Division cannot make decisions about
uniting the family or alternative placement without
thoroughly investigating whether it is safe to return the
child to the home environment. Toward this end, DYFS
caseworkers conduct home visits and interview parents in
order to probe into the origins of the child's injuries. That
is what the Division did in this case. 6
6
We observe that Kobran's interview with
defendant does not constitute a violation of RPC
4.2, which prohibits a lawyer from
communicating with a represented party about the
subject matter of the representation without the
consent of that party's lawyer. The rule is directed
at lawyers not at parties. Model Rules of
Professional Conduct Rule 4.2 cmt. (1992)
(noting that "parties to a matter may communicate
directly with each other" without violating the
rule).
[***56] We emphasize that Kobran's discussion
with the Prosecutor's Office prior to her visit to P.Z. was
intended solely to find out whether the visit would
impede any investigation by that office, and not to further
the prosecutor's investigation. 7 In the totality of these
circumstances--primarily, defendant's level of education
and his representation by counsel in the Title Nine
proceedings, the atmosphere in which the interview was
conducted, and Kobran's purpose in conducting the
interview--we hold that defendant's statement was
voluntary. 8
7 In contrast, the court in Flower, supra, found
that the only purpose motivating a DYFS
investigator when she interrogated the defendant
in prison was to assist in the defendant's
prosecution. 224 N.J. Super. at 218, 539 A.2d
1284. In those circumstances, the court properly
held that Miranda warnings were required.
8 We express no opinion, however, about how
the recently enacted Comprehensive Child Abuse
Prevention and Treatment Act will affect this
analysis. L. 1997, c. 175; see supra note 5. Under
the Act, DYFS is "not ... required to provide
diligent efforts to reunify the child with a parent"
in cases where a parent has been convicted of
killing or attempting to kill, or assaulting or
attempting to assault, one of his or her children.
L. 1997, c. 175, § 5. Section 17 of the Act allows
a petition to terminate the parental rights of a
parent convicted of one of the enumerated crimes
to be filed pursuant to N.J.S.A. 30:4C-15. L.
1997, c. 175, § 17. To the extent that the purpose
of DYFS investigations undertaken pursuant to
this Act are altered, the totality of the
circumstances analysis may be affected.
[***57] [*117] [**917] VI
The Appellate Division held that "fundamental
fairness" and "the Title Nine objective of child
protection" prevent the use of "statements to DYFS
during the pendency of the Title Nine investigation ...
against a party in a criminal action unless there is advice
of Miranda rights and the affording of the Sixth
Amendment right to counsel." 285 N.J. Super. at 229,
666 A.2d 1000. We have, however, determined that the
Title Nine right to counsel adequately protects parents'
fundamental interest in the care and custody of their
children. We decline to apply the doctrine of
fundamental fairness to require any additional procedural
safeguards not now required by constitution or statute.
New Jersey's doctrine of fundamental fairness
"'serves to protect citizens generally against unjust and
arbitrary governmental action, and specifically against
governmental procedures that tend to operate
arbitrarily.'" Doe v. Poritz, 142 N.J. 1, 108, 662 A.2d 367
(1995) (quoting State v. Ramseur, 106 N.J. 123, 377, 524
A.2d 188 (1987) (Handler, J., dissenting)). In those rare
cases where government action does not comport with
"commonly accepted standards of decency of conduct to
which government must adhere," State [***58]
v.
Talbot, 71 N.J. 160, 168, 364 A.2d 9 (1976), and where
51
existing constitutional protections do not provide
adequate safeguards, this Court has not hesitated to
declare that government must be restrained, see Poritz,
supra, 142 N.J. at 108, 662 A.2d 367 (discussing cases in
which fundamental fairness has been used to require
procedural protections that were "not constitutionally
compelled"); Bruce D. Greenberg, New Jersey's
"Fairness [*118] and Rightness" Doctrine, 15 Rutgers
L.J. 927, 945-46 (1984) (analyzing this Court's use of
fairness and rightness doctrine to provide protections
"beyond what due process demands").
The doctrine of fundamental fairness has supported
procedures to protect the rights of defendants at various
stages of the criminal justice process, even when such
protections are not constitutionally required. This Court
has also applied standards of decency and fairness to
governmental action that is constitutional but that,
nonetheless, includes elements of oppression or
harassment requiring court intervention. Poritz, supra,
142 N.J. at 108-09, 662 A.2d 367. The "common
denominator" in our cases is a threshold determination
that someone has been or may be "subjected to [***59]
potentially unfair treatment and there was no explicit
statutory or constitutional protection to be invoked"
against that treatment. Id. at 109, 662 A.2d 367.
Thus, fundamental fairness "prohibits conduct by
law enforcement officials that perverts the judicial
process and turns it into a prosecutorial tool." State v.
Sugar, 84 N.J. 1, 14, 417 A.2d 474 (1980). In cases
where there is an interrelationship between criminal and
civil actions against the same person, courts must be
"sensitive to the potential for the State's deliberately
manipulating a civil procedure in order to obtain
evidence against a criminal defendant." State v. Kobrin
Securities, Inc., 111 N.J. 307, 317, 544 A.2d 833 (1988).
In Kobrin Securities, this Court expressed concern that
the civil discovery process not be used to compel a
defendant to provide information in support of the State's
case in a parallel criminal proceeding. We concluded that
the use of information so obtained would constitute "such
unfairness and want of consideration for justice as to
require reversal." Ibid. (citations and internal quotations
marks omitted).
In child abuse cases DYFS, the civil authority, must
provide information about suspected abuse [***60] and
neglect to the county prosecutor, the criminal authority.
N.J.S.A. 9:6-8.36a. By regulation, the prosecutor is
required to consult with DYFS about whether a criminal
investigation is necessary and to inform DYFS [*119]
when a decision is made to initiate criminal proceedings.
N.J.A.C. 10:129-1.5c; see supra at 98-99, 703 A.2d at
907-908. This relationship between DYFS and the
prosecutor concerned the Appellate [**918] Division in
this case and in Helewa, supra. We reject the contention
that because "parallel civil and criminal systems are both
operating against a defendant at the inception of
proceedings in either court," State v. P.Z., supra, 285
N.J. Super. at 227, 666 A.2d 1000, P.Z. must be accorded
rights not now required by constitution or statute. We are
sensitive to the potential for manipulation adverted to in
Kobrin Securities but do not find it in the exchange of
information between DYFS and the prosecutor. Indeed,
under this system, the requirement that the prosecutor
seek input from DYFS may well work to a defendant's
advantage in those cases where keeping the family
together is in the best interest of the child. This
relationship between the civil and criminal [***61]
authorities does not demonstrate "such unfairness and
want of consideration for justice" that defendant's
statement to Kobran must be suppressed. Kobrin
Securities, supra, 111 N.J. at 317, 544 A.2d 833 (internal
quotation omitted).
We base this conclusion on the total circumstances
of P.Z.'s interview. Defendant was not subjected to
arbitrary procedures that were oppressive, harassing or
that egregiously deprived him of his rights, either to
remain silent or to have the custody and care of his
children. At the time of the interview, Kobran was acting
within the scope of her duties to investigate and establish
a placement plan for defendant's infant daughter who was
shortly to be released from the hospital. We have
previously described the particulars of the interview,
concluding that it was neither oppressive nor coercive.
Kobran's purpose in conducting the interview was never
challenged by defendant: she wanted to hear his response
to his wife's allegations so that she would be better able
to decide where to place defendant's daughter on her
imminent release from the hospital. It was certainly
possible that defendant would deny shaking his daughter
or even that he would claim his [***62] wife had abused
C.Z.
[*120] Most important, there is no indication that
Kobran interviewed defendant with the purpose of aiding
in his criminal prosecution or, as Justice Pollock suggests
in his dissent, that she had a "hidden agenda" to obtain an
"incriminating statement" from P.Z. Infra at 128-129,
703 A2d at 922-923 (Pollock, J., dissenting). The
decision to interview defendant had been made at a
DYFS case planning conference after the meeting
participants, including Kobran, her superiors, and
lawyers from the civil division in the Attorney General's
Office, discussed the information obtained from
defendant's wife. In that a referral had been made to the
Prosecutor's Office, there was certainly a possibility that
a criminal investigation had begun. However, the record
contains no reference to regular interaction between the
civil and criminal authorities, let alone "manipulation" by
DYFS to obtain information specifically to help the
criminal authorities.
To the contrary, Kobran's phone call to Investigator
52
Lazzaro after the case planning conference suggests that
she did not know what the Prosecutor's Office had done
or was doing in P.Z.'s case because she did not know
whether [***63] the proposed meeting with defendant
would impede the prosecutor's investigation. Although
the prosecutor anticipated being informed about the
results of Kobran's visit to P.Z., the visit had a legitimate
independent purpose and was not pretextual. The record
persuasively demonstrates that Lazarro's comments to
Kobran did not precipitate her visit to P.Z. or cause her to
inform the prosecutor about P.Z.'s statement. The
determination to interview P.Z. was made prior to her
phone call to Lazarro and Kobran was obligated by
statute to provide the results of her investigation to the
prosecutor. If there was evidence that a DYFS worker
met with defendant simply as a subterfuge to achieve law
enforcement purposes, we might well reach a different
result. There was no such evidence.
These circumstances do not demonstrate an
egregious deprivation of defendant's rights requiring
application of the doctrine of fundamental fairness to
suppress defendant's statement to Kobran.
[*121] VII
We find no constitutional or other basis on which to
hold defendant's April 5, 1994 statement inadmissible.
We also find no basis to require DYFS caseworkers to
give Miranda [**919] warnings or afford a right to
[***64] counsel during non-coercive, non-custodial
interviews of parents subject to Title Nine investigations.
The judgment of the Appellate Division is reversed.
JUSTICES HANDLER, O'HERN, GARIBALDI,
and STEIN join in CHIEF JUSTICE PORITZ's opinion.
JUSTICE POLLOCK has filed a separate dissenting
opinion, in which JUSTICE COLEMAN joins. JUSTICE
COLEMAN has filed a separate dissenting opinion.
DISSENT BY: POLLOCK; COLEMAN
DISSENT
POLLOCK, J., dissenting.
Occasional disagreement on an appellate tribunal is
inevitable. As regrettable as disagreement may be, the
exposition of different views may serve the public
interest. My perception of the facts and law lead me to a
conclusion opposite from that of the majority.
Consequently, I respectfully dissent.
From my perspective, the only issue on this appeal is
whether the State may admit in a criminal prosecution
defendant's uncounselled oral statement made to a
Division of Youth and Family Services (DYFS)
investigator after invoking his right to counsel. Critical to
this determination are the facts that both the DYFS
caseworker and the Prosecutor knew that defendant's
wife had incriminated him and that defendant was
represented by counsel. [***65] The Appellate Division
affirmed the Law Division's holding that admission of the
statement would be unfair. 285 N.J. Super. 219, 228, 666
A.2d 1000 (1995). I would affirm.
Under the facts of this case, I believe it would be
fundamentally unfair to allow the Prosecutor to introduce
defendant's uncounseled inculpatory statement to the
DYFS caseworker. The State would remain free to
prosecute defendant on other evidence. It should not,
however, be permitted to introduce the words that it
induced him to utter in an ostensible attempt to determine
whether it would return custody of his child to him and
his wife.
Having identified the specific issue presented by the
appeal, it might help to identify other issues that the
appeal does not present. Identification of those irrelevant
issues reveals flaws in [*122] the majority opinion. For
example, not at issue is whether defendant was in
custody when questioned by the DYFS caseworker,
Cheryl Kobran, at defendant's home. Ante at 103-104,
703 A.2d at 910. Contrary to the majority opinion, the
fact that defendant's interrogation was non-custodial,
however, does not moot "the question whether Kobran
was acting as a law enforcement officer." Ante at 103,
703 A.2d at 910 [***66] . Also not at issue is whether an
admission of abuse may aid in the rehabilitation of
abusive parents or whether termination of custody is
automatic if a parent invokes his or her privilege against
self-incrimination. Ante at 107-108, 703 A.2d at 912.
Rehabilitation of abusive parents may be of vital concern
in a custody case; it should have no bearing on the
determination of the admissibility of a defendant's
statement in a criminal prosecution. Similarly not
involved is the question whether "the Title Nine right to
counsel adequately protects parents' fundamental interest
in the care and custody of their children." Ante at 117,
703 A.2d at 917. As adequate as that protection may be,
it is irrelevant to determining the admissibility of
defendant's statement in his criminal prosecution. Also
beside the point is the absence from the record of any
"reference to regular interaction between the civil and
criminal authorities, let alone 'manipulation' by DYFS to
obtain information specifically to help the criminal
authorities." Ante at 120, 703 A.2d at 918. The rarity, if
such is the case, of an untoward arrangement between the
prosecution and DYFS does not justify the arrangement
[***67] when it occurs.
I.
An act of suspected child abuse affects two State
interests. First, acting through DYFS, the State is
primarily interested in protecting the child. DYFS
pursues that interest through an action under N.J.S.A.
53
9:6-1 to -8.73 ("Title 9" action). Second, law
enforcement officials have an interest in prosecuting the
abuser for offenses such as endangering the welfare of
the child and child abuse.
[*123]
The statutory scheme contemplates
cooperation between DYFS and prosecutors. Statutes and
administrative regulations govern the relationship
between DYFS caseworkers and State law enforcement
officials. The purpose of the regulations is to establish a
framework for "liaison and improved communication and
cooperation between the Division's District Offices and
the several [**920] Prosecutor's Offices in order to
further the mutual goals of protecting the child and
proper law enforcement." N.J.A.C. 10:129-1.1(a)(4).
Under its regulations DYFS must:
[R]efer to county prosecutors all cases
that involve suspected criminal activity on
the part of a child's parent, caretaker or
any other person.... [I]t is anticipated that
in most of the cases referred extensive
police involvement [***68] will not be
warranted and indeed that in many cases
no police involvement will be required.
[N.J.A.C. 10:129-1.1(a).]
DYFS must maintain the confidentiality of all
records or reports of child abuse, and they make
disclosure only in specifically enumerated circumstances.
See N.J.A.C. 10:129-2.1. For example, DYFS may
release records and reports to "[a] police or other law
enforcement agency investigating a report of child abuse
or neglect." N.J.A.C. 10:129-2.1(b)(2).
Before filing a Title 9 action, DYFS may conduct an
investigation and a preliminary conference with a
suspected abuser. Reflecting sensitivity to potential
conflicts arising from a Title 9 action and a criminal
prosecution, the Legislature has specifically barred any
statement that DYFS may obtain in a preliminary
conference from admission into evidence in a resulting
criminal prosecution. N.J.S.A. 9:6-8.36.
Consistent with the legislative mandate, Section
409.4 of the DYFS caseworker's field manual, II Field
Operations Casework Policy and Procedures Manual,
advises caseworkers "[i]n cases where the police are
already involved," the Prosecutor may request that the
caseworker "not attempt [***69] to interview an alleged
perpetrator." The Manual explains, "Generally the reason
for such requests is the necessity for law enforcement to
proceed according to prescribed legal procedures for
conducting a criminal [*124] investigation which
includes ... advising the alleged perpetrator of his rights."
Section 409.5 entitled, "Interviewing the Perpetrator in a
Custodial Setting" states that the reason for
communicating with the County Prosecutor's Office "is
to ensure that the interview will not interfere with a
criminal investigation and/or violate the person's Fifth
Amendment rights against self-incrimination...." Finally,
Section 507.1 entitled "Advising Perpetrator of Case
Findings" instructs DYFS caseworkers that "whenever a
case has been referred to the county prosecutor's office,
the Case Manager must check with the county prosecutor
or his designee prior to advising the perpetrator of the
case findings." The Manual explains:
The reason for this is similar to the
reasons for delaying an interview with a
perpetrator (IIC 409.4). That is,
notification of the findings may impede
the criminal investigation, may lead to
destruction or suppression of evidence,
and may prevent [***70] the county
prosecutor's office from being able to
prove a criminal charge.
Thus, both the Legislature and DYFS recognize the
delicate balance among DYFS's protection of a child's
best interests, the Prosecutor's interest in enforcing
criminal laws prohibiting child abuse, and a parent's
privilege against self-incrimination. This Court should be
no less sensitive in recognizing that certain statements
admissible in a Title 9 proceeding may not be admitted in
a criminal prosecution.
Society's paramount concern for the safety of
children vests DYFS with considerable latitude when
investigating suspected acts of child abuse. A criminal
prosecution, by comparison, implicates countervailing
considerations, such as the right of a defendant to
counsel and the exclusion from evidence of a coerced
statement.
Properly pursued, cooperation between DYFS and
law enforcement officers can further the best interests of
children and assist in the enforcement of criminal law. As
this case illustrates, however, cooperation can also lead
to coercion. Under the majority opinion, DYFS
investigators may obtain statements from parents
ostensibly to decide whether to return their children to
them, [***71] but actually to convict the parents of
child abuse. Prosecuting [*125] parents on the basis of
such statements may freeze the flow of information that
DYFS needs to protect the best interests of children.
[**921] II.
The majority holds that defendant's uncounselled
statement is admissible in his criminal prosecution.
Critical to the majority's reasoning is its conclusion that
54
"[t]he circumstances surrounding defendant's April 5
interview fail to demonstrate the coercive atmosphere
and restraint of freedom that comprises a custodial
interrogation." Ante at 103, 703 A.2d at 901. In reaching
that conclusion, the majority admits that if defendant was
in custody at the time of the interview, the invocation of
his right to counsel would preclude admission of his
statement. Because it finds that defendant was not in
custody, the majority concludes that he was not coerced.
For me, that conclusion views the facts of this case too
antiseptically.
The essential facts are that in the fall of 1993,
defendant's four- or five-month old daughter, C.Z., was
hospitalized with injuries consistent with "Shaken Baby
Syndrome." Acting on behalf of DYFS, the Attorney
General instituted a Title 9 action. Public [***72]
defenders represented defendant and his wife. N.J.S.A.
9:6-8.43(a). On DYFS's motion, the Family Part entered
an order granting DYFS legal custody of the couple's two
minor children, C.Z. and M.Z. C.Z. remained in the
hospital. The court awarded defendant's father physical
custody of M.Z. and prohibited defendant and his wife
from unsupervised contact with her. The court also
ordered defendant to undergo drug and psychological
testing. Finally, the court directed defendant and his wife
to participate in counseling and parent training.
Initially, both parents denied any responsibility for
C.Z.'s injuries. Then, defendant's wife told Cheryl
Kobran, a DYFS caseworker, that defendant had
admitted to her that he was responsible for the injuries.
Faced with the imminence of C.Z.'s release from the
hospital, DYFS called a conference attended by Kobran,
[*126] her supervisor, the District Office Manager, a
Case office Worker, a Litigation Specialist (a liaison
between DYFS and the Attorney General), and a Deputy
Attorney General. At that conference, Kobran was
directed to interview defendant to ascertain if defendant
would confirm his wife's version of the facts.
Kobran's supervisor and the [***73]
Deputy
Attorney General instructed Kobran "to call the
Prosecutor's Office, to advise them of [Kobran's] intent to
interview [defendant], in an effort not to impede any
investigation that they may have had going on."
Consequently, Kobran spoke with Investigator Lazarro of
the Prosecutor's Office. According to Kobran, Lazarro
told her that "[b]ecause [defendant] has a lawyer, [the
Prosecutors] cannot interview him, but said that there is
no obstacle to [DYFS] interviewing him, and asked that I
call [the Prosecutor's Office] with my findings."
Without communicating with defendant's attorney,
Kobran and another caseworker made an unannounced
visit to defendant's home. After defendant's father
admitted them to the home, Kobran asked him to leave
the room and then, with the other investigator, confronted
defendant alone.
Defendant thought that the purpose of the meeting
was to discuss whether he and his wife would regain
custody of their children. Still, he told Kobran that his
counsel had advised him not to speak to her. If the State
intended to introduce evidence of any statement made by
defendant, Kobran should have stopped the interview
until after defendant had spoken [***74] with his
counsel.
Pursuant to the Prosecutor's authorization, however,
Kobran "encouraged him to speak with me, because I
said that we were there to finish the Division's
investigation regarding the matter of [C.Z.'s] injuries.
And also, we really needed to deal with the crisis at
hand, which was where [C.Z.] was going to be going,
because she was ready for discharge from the hospital.
And also, [M.Z.]. As a result of this information, we had
concerns about [M.Z.'s] protection."
[*127] Defendant knew of DYFS's preliminary
plan to put C.Z. in a foster home on her release from the
hospital. Finally, Kobran told defendant that if he
cooperated with DYFS, he might be able to resolve the
"crisis." Significantly, Kobran did not inform defendant
that any statement he made could be used against him in
a criminal prosecution or that one reason for her visit was
to induce him to confirm his wife's version of the facts.
[**922] After remaining quiet for some time,
defendant began to talk. He was upset and remorseful. As
Kobran testified, defendant said that C.Z. had cried, that
he could not console her, and that he shook her two or
three times out of frustration. In suppressing defendant's
statement, [***75] the trial court accepted defendant's
testimony that he had made the statement because it
meant "my kids were going to come home, or so I
thought anyway."
As the trial court found, defendant had "no reason to
think, at least at this point, that he's going to be charged
with anything, but we know that the Prosecutor has been
involved, at that point, a good long period of time. They
are looking at this case. And certainly, there's a
possibility here that he's a target." Later, the trial court
explained, "No Criminal Complaint's really filed, but [the
Prosecutor is] there."
The issue before the Court is not whether DYFS may
use defendant's statement to resolve the issue of custody
of C.Z., but whether the Prosecutor may introduce the
statement in its prosecution for child abuse. In resolving
this issue, I accept the majority's characterization that
defendant was not in "custody" in the constitutional
sense. Ante at 104, 703 A.2d at 910. That
characterization, however, does not predetermine that
Kobran's interrogation was free from coercion or that
admissibility of defendant's statement would not be
55
fundamentally unfair.
The announced purpose of Kobran's visit was to
[***76] determine whether the State would return
custody of C.Z. to defendant and his wife. For most
parents, the fear of losing custody of a child would
produce a coercive effect. According to Kobran, that is
precisely the effect it produced on defendant.
[*128]
When Kobran confronted defendant,
moreover, she knew that defendant's wife had told DYFS
that defendant had caused C.Z.'s injuries. The
admissibility of the wife's statement is not before us, but
the record indicates that the State could subpoena the
wife to testify at defendant's prosecution. The Rules of
Evidence specifically provide that "[T]he spouse of the
accused in a criminal action shall not testify in such
action except to prove the fact of marriage unless ... (b)
the accused is charged with an offense against the
spouse, a child of the accused or of the spouse, or a child
to whom the accused or the spouse stands in the place of
a parent." N.J.S.A. 2A:84A-17(2)(b); N.J.R.E. 501(2)(b).
Although the State contends that the purpose of the
DYFS interview was to discover the cause of C.Z.'s
injuries, the record supports the conclusion that another
purpose was to elicit an incriminating statement from
defendant. At least that [***77] is how the Prosecutor's
Office perceived the purpose of the interview.
Unknown to defendant at the time he spoke with
Kobran, she was acting both for DYFS and for the
County Prosecutor. Even assuming, as the majority
contends, that the DYFS caseworker was acting primarily
to protect the best interest of C.Z., it remains that the
caseworker also was acting on behalf of the County
Prosecutor. In sum, Kobran was a dual agent. For the
purpose of resolving whether defendant's statement is
admissible in the criminal prosecution of defendant,
Kobran's more relevant role is as the agent of the
Prosecutor. Only after Kobran elicited the challenged
statement from defendant did she reveal her hidden
agenda.
The prior conference between Lazarro and Kobran,
in which Lazarro requested Kobran to report any
statement made by defendant, is sufficient to constitute
Kobran as the Prosecutor's agent for the purpose of
deciding whether to suppress the defendant's statement in
his criminal prosecution. Under the circumstances, the
Court should scrutinize Kobran's conduct as tantamount
to that of a law enforcement officer. See State v. Helewa,
223 N.J. Super. 40, 50, 537 A.2d 1328 (App.Div.1988).
[*129] The majority [***78] takes a different view
of the facts. It asserts that "there is no indication that
Kobran interviewed defendant with the purpose of aiding
in his criminal prosecution...." Ante at 120, 703 A.2d at
918. The majority stresses that the "Division's objective
is to protect children from abuse and neglect and not to
promote law enforcement" and that "Kobran's discussion
with the Prosecutor's Office prior to her visit to P.Z. was
[**923] intended solely to find out whether the visit
would impede any investigation by that office, and not to
further the prosecutor's investigation." Ante at 116, 703
A.2d at 916. Yet, the majority refuses to suppress
defendant's statement because of its perception that
suppression would force DYFS caseworkers "to choose
between providing Miranda warnings and foreclosing the
use in criminal proceedings of information obtained in
the course of an ... investigation...." Ante at 112-113, 703
A.2d at 914. If, as the majority contends, a DYFS
caseworker should be unconcerned with promoting
prosecutions, the caseworker should be equally
unconcerned with the admissibility of a parent's
statement in a criminal prosecution. By emphasizing that
Kobran was concerned not [***79] only with the child's
best interests but with the admissibility of defendant's
statement in the criminal prosecution, the majority
implicitly confirms Kobran's status as a dual agent.
The proof of the pudding is in the eating. Here, the
proof is that the Prosecutor, having authorized Kobran to
take a statement from defendant, now wants to introduce
that statement in the prosecution of defendant.
To justify admission of defendant's statement, the
majority relies on a decision of the Minnesota Supreme
Court involving application in a custody case of a
parent's Fifth Amendment privilege against selfincrimination. In In re J.W., 415 N.W.2d 879
(Minn.1987), the Minnesota Supreme Court held that the
Fifth Amendment protected parents from a court order
compelling them to incriminate themselves as a condition
precedent to obtaining custody of their children. Id. at
883. The Court found that "[a]ssertion of a constitutional
right does not make a person a less [*130] fit parent,
any more than it makes a person a less good citizen."
Ibid. Recognizing, however, that the parents' failure to
admit their fault may hinder the usefulness of therapy,
the Court concluded that the failure could [***80] "hurt
the parents' chances of regaining their children." Ibid.
Under the Fifth Amendment, the State may well be able
to consider a parent's failure to explain their child's
injuries when considering custody. J.W.'s conclusion,
however, is irrelevant to determining whether it is
fundamentally unfair to permit the Prosecutor to
introduce in evidence a statement, which would be
inadmissible if obtained by the Prosecutor.
Demonstrating concern for the delicate balance
between protecting the best interests of children and
prosecuting culpable parents, the Minnesota Court
observed further:
If the state believes talking to the
psychologist about the nephew's death
56
would help [the parents] become good
parents, the state could abandon its pursuit
of criminal prosecutions and apply to the
court for a grant of immunity for the
parents. The parents could then, without
fear of prosecution or prison, participate
in meaningful therapy.
[Id. at 884.]
Thus, the Minnesota Court recognized that the State
might better serve the public interest by forsaking
admission of parental statements in a criminal proceeding
for frank disclosure in a custody action. To this [***81]
extent, J.W. supports the exclusion, rather than the
admission of defendant's statement.
In the present case, if defendant had made his
statement at a preliminary conference or while he was in
custody, his statement would be inadmissable at his
criminal trial. Because defendant did not make his
statement in a preliminary conference, the prohibition of
N.J.S.A. 9:6-8.36 does not apply. Moreover, in the sense
that Kobran's interrogation took place in defendant's
home, and not the Prosecutor's office or DYFS's office,
defendant was not in "custody" as the DYFS manual
defines that term. Strictly speaking, therefore, Section
409.5 of the DYFS manual does not apply. The purpose
of both the statute and the manual, however, is to prevent
the State's exploitation of the parent-child relationship
[*131] by coercing a parent to make a statement not to
determine the child's best interests, but to convict the
parent of child abuse.
Id. at 83, 275 A.2d 137. Notwithstanding the Court's
reference to the "Fifth Amendment," the opinion is best
understood as a finding that admission of the defendant's
uncounseled statements was fundamentally unfair.
The doctrine of fundamental fairness protects against
unjust or oppressive governmental action. Doe v. Poritz,
142 N.J. 1, 107-08, 662 A.2d 367 (1995). It "serves,
depending on the context, as an augmentation [***83] of
existing constitutional protections or as an independent
source of protection against state action." State v.
Ramseur, 106 N.J. 123, 377, 524 A.2d 188 (1987).
(Handler, J., dissenting). The doctrine applies "where not
to do so will subject the defendant to oppression,
harassment, or egregious deprivation." State v.
Yoskowitz, 116 N.J. 679, 712, 563 A.2d 1 (1989)
(Garibaldi, J., concurring and dissenting). Essentially, the
doctrine [*132] of fundamental fairness operates
throughout the criminal justice process to assure
procedural fairness in the absence of constitutional or
statutory protection. Poritz, supra, 142 N.J. at 108-09,
662 A.2d 367. When a civil action and a criminal
prosecution interrelate, courts must be particularly
"sensitive to the potential for the State's deliberately
manipulating a civil procedure in order to obtain
evidence against a criminal defendant." State v. Kobrin
Securities, Inc., 111 N.J. 307, 317, 544 A.2d 833 (1988).
I respectfully submit that it is fundamentally unfair for
the State to admit into evidence in this criminal
prosecution defendant's uncounseled oral statement to the
DYFS caseworker who represented that she was trying to
determine whether DYFS would return custody [***84]
of defendant's child to him and his wife. Consequently, I
dissent.
III.
Justice COLEMAN joins in this opinion.
In an analogous case, this Court declared
inadmissible in the prosecution of a woman for
fornication written statements she had made when
seeking welfare for her illegitimate [**924] children.
State v. Clark, 58 N.J. 72, 275 A.2d 137 (1971). When
she applied for welfare, [***82] the local welfare
department instructed her to file a bastardy complaint
against the children's father. Id. at 77, 275 A.2d 137. In
the complaint, the woman made incriminating statements
admitting that she and the father had engaged in sexual
relations. Id. at 79, 275 A.2d 137. Like defendant in this
case, the woman was not in custody when she made the
statements. Similarly, the governmental agency failed to
advise the woman of her privilege against selfincrimination. Id. at 79-80, 275 A.2d 137. The State,
however, introduced her testimony in evidence when
prosecuting her and the father for fornication. Id. at 82,
275 A.2d 137. This Court reversed the conviction,
finding the uncounseled statements inadmissible because
of "Fifth Amendment implications involved, in
association with strong considerations of public policy."
COLEMAN, J., dissenting.
I concur in Justice Pollock's dissenting opinion. I
write separately because I believe defendant's confession
should be inadmissible in the criminal proceedings for an
additional reason.
This case involves the admissibility of a confession
that resulted from a noncustodial interrogation during an
ostensible Title Nine civil investigation. The trial court
excluded the confession under a Sixth Amendment
analysis based on defendant invoking the right to
counsel. The Appellate Division excluded the confession
based on the twin principles of fundamental fairness and
the public policy of furthering the Title Nine "objective
of child protection by promoting disclosures and
admissions of abuse at the earliest possible time." State v.
P.Z., supra, 285 N.J. Super. at 229, 666 A.2d 1000. It
also used a Fifth Amendment waiver analysis and a Sixth
Amendment right to counsel approach in concluding that
"statements to DYFS during the pendency of the Title
Nine investigation may not be used against a party in a
57
criminal action" unless Miranda has been followed.
[***85] Ibid. I believe that defendant's confession
should be suppressed for want of voluntariness [*133]
in the Fourteenth Amendment confession context rather
than simply in a Fifth Amendment Miranda waiver
context.
those fundamental rights may be justified only by the
most important of state interests, and even then, the State
must use the narrowest means which can be designed to
achieve the public purpose, here, the protection of abused
or neglected children. Under the majority's opinion, that
has not occurred in this case.
The Due Process Clause of the Fourteenth
Amendment provides that no state shall "deprive any
person of life, liberty, or property, without due process of
law." U.S. Const. amend. XIV, § 1. That amendment
"secures against state invasion ... the right of a person to
remain silent unless he [or she] chooses to speak in the
unfettered exercise of his [or her] own will." Malloy v.
Hogan, 378 U.S. 1, 8, [**925] 84 S. Ct. 1489, 1493, 12
L. Ed. 2d 653, 659 (1964).
Whenever a liberty interest is at stake, due process
must be followed before interfering with that interest.
The question then becomes what due process is required.
It has been described as an elusive concept whose "exact
boundaries are undefinable." Hannah v. Larche, 363 U.S.
420, 442, 80 S. Ct. [***88] 1502, 1514, 4 L. Ed. 2d
1307, 1321 (1960). It is both a flexible and "dynamic
concept," Callen v. Sherman's, Inc., 92 N.J. 114, 134,
455 A.2d 1102 (1983), whose "sense of fairness cannot
be imprisoned in a crystal." Id. at 136, 455 A.2d 1102.
Under the Due Process Clause, "certain interrogation
techniques, either in isolation or as applied to the unique
characteristics of a particular suspect, are so offensive to
a civilized system of justice that they must be
condemned." Miller v. Fenton, 474 U.S. 104, 109, 106 S.
Ct. 445, 449, 88 L. Ed. 2d 405, 410 (1985). An
interrogation technique becomes offensively intolerable
when "self-direction is lost and compulsion, of whatever
nature or however infused, propels or helps to propel
[***86] the confession." Culombe v. Connecticut, 367
U.S. 568, 602, 81 S. Ct. 1860, 1879, 6 L. Ed. 2d 1037,
1058 (1961). Consequently, the test for involuntariness in
the Due Process Clause context focuses on both police or
governmental overreaching and the suspect's free will.
Under our accusatorial system of justice, in contrast to an
inquisitorial system, a coerced confession is inadmissible
because its involuntariness makes it unreliable. Jackson
v. Denno, 378 U.S. 368, 382-86, 84 S. Ct. 1774, 1783-86,
12 L. Ed. 2d 908, 919-21 (1964); State v. Jordan, 147
N.J. 409, 425-28, 688 A.2d 97 (1997); State v. Hampton,
61 N.J. 250, 264-65, 294 A.2d 23 (1972).
Since the formation of our constitutional form of
government, the right of a parent to raise and educate his
or her children has been regarded as a fundamental right.
Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388,
1394, 71 L. Ed. 2d 599, 606 (1982); Roe v. Wade, 410
U.S. 113, 152-53, 93 S. Ct. 705, 726-27, 35 L. Ed. 2d
147, 176-77 (1973); Stanley v. Illinois, 405 U.S. 645,
651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59
(1972); Pierce v. [*134] Society of Sisters, [***87]
268 U.S. 510, 534-35, 45 S. Ct. 571, 573, 69 L. Ed. 1070,
1077-78 (1925); In re Promulgation of Guardianship
Servs. Regulations, 103 N.J. 619, 634, 512 A.2d 453
(1986); In re Guardianship of Dotson, 72 N.J. 112, 122,
367 A.2d 1160 (1976) (Pashman, J., concurring). That
interest is "'implicit in the concept of ordered liberty.'"
Paul v. Davis, 424 U.S. 693, 713, 96 S. Ct. 1155, 1166,
47 L. Ed. 2d 405, 421 (1976) (quoting Palko v.
Connecticut, 302 U.S. 319, 325, 58 S. Ct. 149, 151-52,
82 L. Ed. 288, 292 (1937)). A state's interference with
Defendant relies on two out-of-state cases to support
his contention that his confession was coerced based on
the interrogator's not-so-subtle suggestion that if he did
not cooperate, his fundamental right to his children
would be jeopardized. This argument is persuasive. In
Lynumn v. Illinois, 372 U.S. 528, 83 S. Ct. 917, 9 L. Ed.
2d 922 (1963), a confession was found to have been
coerced because the interrogator told a mother that state
financial aid for her children would be terminated, that
her children could be taken from her, and that she would
receive a long prison term unless she admitted to selling
marijuana to an informant. Id. at 531-34, 83 S. Ct. at
919-20, 9 L. Ed. 2d at 925-26.
[*135] In United States v. Tingle, 658 F.2d 1332
(9th Cir.1981), a mother of a two-year-old child
confessed to participating in a robbery after her
interrogator threatened that she would not see her child
for a long time if she did not cooperate [***89] and
warned her of the long term of imprisonment which
could be imposed. The court held:
We think it clear that the purpose and
objective of the interrogation was to cause
Tingle to fear that, if she failed to
cooperate, she would not see her young
child for a long time. We think it equally
clear that such would be the conclusion
which Tingle could reasonably be
expected to draw from the agent's use of
this technique. The relationship between
parent and child embodies [**926] a
primordial and fundamental value of our
society. When law enforcement officers
deliberately prey upon the maternal
instinct and inculcate fear in a mother that
she will not see her child in order to elicit
"cooperation," they exert the "improper
influence" proscribed by Malloy.
[Id. at 1336.]
58
Both Lynumn and Tingle involved noncustodial
interrogations in criminal cases. Both confessions were
suppressed under the Due Process Clause. The same rule
prevails when interrogations occur in civil cases
regardless of whether criminal charges are likely to
follow. See, e.g., Mathis v. United States, 391 U.S. 1, 4,
88 S. Ct. 1503, 1504-05, 20 L. Ed. 2d 381, [***90] 384,
1968-2 C.B. 903 (1968) (involving questions asked by
Internal Revenue Service agent during routine tax
investigation); United States v. Mata-Abundiz, 717 F.2d
1277, 1279 (9th Cir.1983) (involving questions asked
during Immigration and Naturalization Service
investigation); State v. Clark, 58 N.J. 72, 83, 275 A.2d
137 (1971) (involving welfare, bastardy and police
proceedings).
A party to Title Nine litigation is permitted to speak
with another party involved in that litigation who is
known to be represented by counsel. However, a
prosecutor may not use a DYFS worker as an agent to
circumvent the rules of professional responsibility that
forbid the prosecutor from directly speaking to such a
party. See ABA Comm. on Ethics and Professional
Responsibility, Formal Op. 95-396 (1995) (holding a
lawyer may not direct an investigative agent to
communicate with a represented person in circumstances
where the lawyer would be prohibited [*136] from
doing so). Because defendant's wife had informed DYFS
that he had admitted to shaking the child, the
interrogation of defendant in isolation and without his
attorney was designed to obtain evidence for the
prosecution independent of DYFS's needs necessitated
[***91] by the Title Nine proceedings. Thus, when
Kobran interrogated defendant, her "role changed and
became essentially like that of an agent of the State."
Estelle v. Smith, 451 U.S. 454, 467, 101 S. Ct. 1866,
1875, 68 L. Ed. 2d 359, 372 (1981); State v. Helewa, 223
N.J. Super. 40, 47, 537 A.2d 1328 (App.Div.1988).
Significantly, while acting like an agent of the
prosecutor, Kobran told defendant essentially that unless
he cooperated, he would lose his fundamental right to the
custody and the rearing of his children. The absence of
legal counsel and Kobran's request that defendant's father
leave them alone, contributed to the coercive nature of
the interrogation. See Blackburn v. Alabama, 361 U.S.
199, 207-08, 80 S. Ct. 274, 280-81, 4 L. Ed. 2d 242, 249
(1960) (holding that the absence of legal counsel, friends
and family members are factors bearing on whether there
was coercion).
"The aim of the requirement of due process is ... to
prevent fundamental unfairness in the use of evidence
whether [that evidence is] true or false." Lisenba v.
California, 314 U.S. 219, 236, 62 S. Ct. 280, 290, 86 L.
Ed. 166, 180 (1941). Here, the degree [***92] of
unfairness was enhanced by the fact that although
Kobran knew defendant had counsel in the Title Nine
action, which was constitutionally mandated because the
stakes were so high, New Jersey Div. of Youth and
Family Servs. v. E.B., 137 N.J. 180, 186, 644 A.2d 1093
(1994), she nonetheless, while acting as an agent of the
prosecutor, ignored his expressed desire to have counsel
present during her interrogation.
Governmental activities that are coercive may
preclude a confession from being used as evidence when
it was involuntarily obtained within the meaning of the
Due Process Clause of the Fourteenth Amendment.
Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515,
522, 93 L. Ed. 2d 473, 484 (1986). Under the totality of
the circumstances, I am persuaded that defendant's
confession [*137] was coerced. When a confession is
coerced, it should be excluded from the State's case-inchief because it is deemed to be involuntary and
therefore unreliable. Consequently, I would modify the
judgment of the Appellate Division and affirm the
suppression of the confession.
59
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ROBERT BISACCIA, DEFENDANTAPPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ANTHONY PROTO,
DEFENDANT-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. SAMUEL LOUIS
CORSARO, DEFENDANT-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. LOUIS
FULCO, DEFENDANT-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CHARLES
MUCCIGROSSO, DEFENDANT-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v.
NICHOLAS DESTEFANO, DEFENDANT-APPELLANT.
A-3638-92T4, A-3697-92T2, A-3865-92T2, A-5439-92T4, A-5441-92T4, A-5448-92T4
SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
319 N.J. Super. 1; 724 A.2d 836; 1999 N.J. Super. LEXIS 57
January 13, 1999, Argued and Submitted
March 2, 1999, Decided
SUBSEQUENT HISTORY:
publication March 2, 1999.
[***1] Approved for
PRIOR HISTORY:
On appeal from the Superior
Court of New Jersey, Law Division, Essex County.
COUNSEL: Charles H. Landesman, Designated
Counsel, argued the cause for appellant Robert Bisaccia
(Ivelisse Torres, Public Defender, attorney; Mr.
Landesman, on the brief).
Alan Zegas argued the cause for appellants Anthony
Proto and Samuel Louis Corsaro (Mr. Zegas, attorney;
Weissbard and Wiewiorka, former attorneys; Harvey
Weissbard, on the brief).
Mark E. Tabakman, Designated Counsel, argued the
cause for appellant Charles Muccigrosso (Ivelisse Torres,
Public Defender, attorney; Mr. Tabakman, on the brief).
Ivelisse Torres, Public Defender, attorney for appellants
Louis Fulco and Nicholas DeStefano (Michael C. Kazer,
Designated Counsel, on the brief for appellant Fulco;
Jeffrey L. Weinstein, Designated Counsel, on the brief for
appellant DeStefano).
Robert E. Bonpietro, Deputy Attorney General, argued
the cause for respondent in the argued cases (Peter
Verniero, Attorney General, attorney; Mr. Bonpietro, on
the briefs).
Peter Verniero, Attorney [***2] General, attorney for
respondent in the submitted cases (Robert E. Bonpietro,
Deputy Attorney General, on the briefs).
JUDGES: Before Judges STERN, BRAITHWAITE and
WECKER. The opinion of the court was delivered by
STERN, P.J.A.D.
OPINION BY: STERN
OPINION
[*5]
[**838]
delivered by
The opinion of the court was
STERN, P.J.A.D.
The six appellants ("defendants") were indicted with
ten other individuals and two corporations in a seventycount indictment, the last fifty-one of which were
severed for purposes of trial. The six appellants and
defendant Casiere were jointly tried on the first [*6]
nineteen counts of the indictment. 1 Count one charged
defendants with conspiracy to commit racketeering,
N.J.S.A. 2C:41-2d and 2C:5-2. Count two charged all six
with racketeering, N.J.S.A. 2C:41-2b, -2c. Count three
charged Bisaccia as a leader of organized crime, N.J.S.A.
2C:5-2g. Count four charged the defendants except Proto
with conspiracy involving the hijacking of a trailer load
of cigarettes, N.J.S.A. 2C:5-2. Counts five and six
charged the same defendants with robbery, N.J.S.A.
2C:15-1 and 2C:2-6, and kidnapping the driver, N.J.S.A.
2C:13-1b and 2C:2-6, while count seven charged Fulco
and Muccigrosso with receipt [***3] of the stolen
cigarettes, N.J.S.A. 2C:20-7 and 2C:2-6. [**839] Count
eight charged Bisaccia and DeStefano with conspiracy to
commit theft by extortion, N.J.S.A. 2C:5-2, and count
nine charged them with the substantive crime, N.J.S.A.
2C:20-5a and 2C:2-6. Count ten charged Bisaccia and
Corsaro with conspiracy to commit arson and burglary of
the Attorney General's office in Fairfield, N.J.S.A. 2C:52, and count eleven charged them with conspiracy to rob
the Coin Depository Corp. in Elizabeth, N.J.S.A. 2C:5-2.
Counts twelve and thirteen charged Bisaccia and Corsaro
with conspiracy to commit extortion, N.J.S.A. 2C:5-2,
and the substantive theft by extortion relating to J & M
Pest Control, N.J.S.A. 2C:20-5a, -5g; 2C:2-6. Count
fourteen charged Bisaccia, Corsaro and Proto with
60
conspiracy to commit theft by extortion with respect to
the use of waste dumpsters owned by the Savino
Companies, N.J.S.A. 2C:5-2, and count fifteen charged
Bisaccia, Corsaro and Proto with the substantive offense,
N.J.S.A. 2C:20-5a, -5g; 2C:2-6. Counts sixteen and
seventeen charged them with conspiracy to commit theft,
N.J.S.A. 2C:5-2, and theft from the Savino Companies,
N.J.S.A. 2C:20-3a; 2C:2-6. Count eighteen charged
[***4] Bisaccia, Corsaro and Proto with a conspiracy
involving commercial bribery of Ross Esporrin, an
employee of Keithley Construction Corp., with respect to
the use of the Savino dumpsters, N.J.S.A. 2C:5-2, and
count nineteen charged them with the substantive crime
of commercial bribery, N.J.S.A. 2C:21-10c, -10d; 2C:2-6.
1 Casiere was acquitted of all charges and is not
referred to herein.
[*7] Counts one and two were dismissed during
trial as to Fulco and Muccigrosso. Counts four, five and
six were dismissed as to all defendants insofar as the
cigarette hijacking crimes included an armed robbery and
kidnapping. Bisaccia, Corsaro and Proto were found
guilty of the racketeering conspiracy and racketeering.
Bisaccia was found guilty on count three as a leader of
organized crime. All defendants except Proto who was
not charged in count four were found guilty of the
conspiracy to receive the hijacked cigarettes. Fulco and
Muccigrosso were found guilty on count seven with
regard to receiving stolen cigarettes. Corsaro was [***5]
found guilty on count ten, the conspiracy with regard to
the Attorney General's office. Bisaccia, Corsaro and
Proto were found guilty of counts fourteen, sixteen,
seventeen, eighteen and nineteen concerning the theft
from the Savino Companies and commercial bribery of
Esporrin.
Bisaccia received a sentence aggregating forty years
with twenty years before parole eligibility. Corsaro
received an aggregate sentence of twenty-six years with
thirteen years before parole eligibility. Fulco was
sentenced to ten years imprisonment with five years
before parole eligibility. Proto was sentenced to terms
aggregating sixteen years with eight years before parole
eligibility. DeStefano was sentenced to seven years
imprisonment, and Muccigrosso received concurrent
sentences aggregating seventeen years with eight-andone-half years before parole eligibility.
I.
his exposure to newspaper accounts [***6] regarding
defendant Muccigrosso. On February 11, 1993, the trial
judge interviewed M.C. outside the presence of the jury.
According to M.C., the jurors regularly discussed
newspaper [*8] reports about the trial, but M.C. could
only name two jurors who initiated such discussions.
M.C. also claimed that there were "always [news]papers
in the [jury] room." On February 20, 1993, the judge
found M.C.'s allegation of rampant juror misconduct to
be "inherently and expressly unreliable, untrustworthy
and lacking any credible ring of truth whatsoever." Thus,
the judge declined to voir dire the jury regarding M.C.'s
allegations.
In the interim, following a report that a juror's car
was shot at on the evening of February 16, 1993, the
State moved on February 17, 1993, to have the jury
sequestered. After granting the motion, the trial judge
discharged the juror whose car was shot at and met with
the remaining jurors in chambers, [**840] outside the
presence of defendants and counsel, to discuss the
sequestration. At the meeting, juror number 8, M.B., told
the judge that he could not "make a fair decision here."
The judge made no inquiry as to M.B.'s comment and
advised M.B. that he would remain on the [***7] jury.
At a subsequent meeting the next morning attended by
the judge, jury and Court Administrator, M.B. again
addressed the judge on the same subject. The record
reflects the following exchange:
[M.B.]: As I was trying to say to you
yesterday, your Honor, you know, I
haven't been to court in some time, I have
been on the job, when you are on the job
you hear things you don't want to hear,
and like I said, I want to make a fair
decision, but-THE COURT: Our purpose in
meeting here now is not to go into the
merits of the case, that is not our purpose,
the purpose of this meeting deals with the
problems that arise out of sequestration.
Those are the problems.
[M.B.]: Could I meet with you at
another time, you and the seven lawyers,
then?
THE COURT: We will reserve on
that. 2
Jury selection commenced on March 2, 1992, and
the trial commenced on June 11, 1992. The case was
submitted to the jury on March 3, 1993.
On February 9, 1993, shortly before summations
were to begin, the trial judge received a letter from M.C.,
a juror who had been excused during the trial because of
2 A recess had been taken in January due to the
health of defendant Proto.
At the February 18, 1993 meeting, two jurors also
61
voiced concern about being followed by a man who,
according [***8] to one of the jurors, was "always in the
courtroom." According to the other juror, the man had
"approached [him] in the car wash," about two weeks
earlier and asked him was "this your kid." The juror
reported that he "walked away from" the man.
[*9] The transcript of the February 18, 1993
meeting was made available to all counsel the next day.
While the proceedings on February 19, 1993, were
thereafter devoted to argument regarding former juror
M.C., defense counsel also asked to be heard regarding
the previous day's in camera meeting between the judge
and jury and specifically regarding the "[M.B.] issue."
The judge declined to hear argument at that time, saying
that he would entertain argument on the M.C. matter and
would address the M.B. matter in the future.
The next day, Saturday, February 20, 1993, the court
announced its decision denying further jury inquiry
regarding M.C.'s letter and ordered defense counsel to
begin summations. Defense counsel moved for a mistrial
on the grounds of the judge's February 18, 1993 meeting
with the jurors and M.B.'s statement that he could not be
fair and wanted to speak to the judge. The judge refused
to hear the motion that day. During [***9] the course of
this discussion, the judge for the first time told defense
counsel about his prior meeting with the jurors on
February 17, 1993, and told them that he would make the
transcript available to them. Despite defendants'
arguments that they were not prepared to present their
summations on that day, the summations commenced on
February 20, 1993.
During the next few days, at breaks in the
summations, defense counsel continued to move for a
voir dire of juror M.B. and to be heard on other issues
regarding the meetings. The judge stated that he would
hear these motions after summations were completed. At
the conclusion of the prosecutor's summation on March
1, 1993, defense counsel argued that the entire jury
should be interrogated regarding the meetings of
February 17 and 18, 1993, or, in the alternative, that a
mistrial should be declared. The statements of M.B.
during the meetings was one of the grounds for these
motions. Particularly in light of the fact that defendant
Fulco had endeavored in open court on February 20,
1993 to question M.B. directly as to why he could not be
fair, the [*10] prosecutor conceded in his argument that
M.B. should be interviewed. According to the [***10]
prosecutor:
Obviously, if [M.B.] said that he could
[not] he fair, he probably--not probably,
he should be interrogated in [sic]
especially in light that Mr. Fulco jumped
on that Saturday and yelled right at him,
[M.B.], come forward. He should be
inquired as to whether or not those actions
by Mr. Fulco had any--play any part in his
ability to be fair. . . .
The judge denied the application to question M.B.
The judge stated that he had previously [**841]
conducted three interrogations of the jury regarding their
exposure to mid-trial publicity, and had frequently
instructed the jury not to discuss the case with anyone.
He presumed the jurors followed his instructions. With
regard to M.B., the judge held:
the Court is of the sound view that an
insufficient foundation has been
established to warrant any further
investigation. To entertain a voir dire of
this juror and other jurors, based on this
colloquy [between the judge and M.B.],
would, in my judgment, be one--an
application which is unfounded and
without any merit.
The judge stated that it was apparent to him based on
M.B.'s demeanor, that M.B.'s statements "were motivated
[by] nothing [***11] other than an attempt to gain the
sympathy of the Court relative to the need for his
continued confinement as a sequestered juror." He
emphasized that M.B. only claimed he could not be fair
after he learned that he was to be sequestered.
Subsequently, the State suggested that because of
defendants' objections to M.B., he should be "designated
as the alternate juror." Defendants objected; they
believed that M.B. should be removed from the jury
altogether and had possibly tainted the entire jury. The
judge denied both requests and the alternate was selected
"by random" drawing.
On the second day of deliberations, March 4, 1993,
the jury sent out the following note to the trial judge at
3:07 p.m.: "we, the jurors, are at a standstill. Juror
Number 8 and 9 have determined a certain verdict and
[are] not willing to discuss any matter with any of us. We
feel that we need someone to intervene so that we can
continue our deliberation. Thank you." Most counsel
requested that the judge instruct the jury to continue its
deliberations. Bisaccia's counsel moved for a mistrial.
The judge denied [*11] the mistrial motion because he
did not believe that the note showed that the jury could
not be fair [***12] and impartial. However, he reminded
the jurors of their obligation to deliberate with each
other.
At 6:05 p.m. the same day, the jury sent another note
to the judge:
62
[W]e have a juror that is in fear of his
life. He feels he cannot render a fair
decision. We have tried numerous
attempts at deliberating, to no avail. We
would like to know if at all possible the
alternate can take his place.
Also, we would like to adjourn for
today. Thank you.
The record does not reveal the identity of the juror.
The attorneys for defendants Fulco and DeStefano asked
that a mistrial be declared on the basis that the juror's
remark had "tainted" the entire jury. The other defense
counsel requested that the jury be instructed that it must
continue to deliberate. In addition, Bisaccia's attorney
asked that the jury be interrogated. The prosecutor
recommended that the juror in question "be excused from
service" because he had indicated that he could not
render a verdict based on the evidence.
The judge denied the mistrial motion and the motion
to dismiss the juror. He reasoned that the juror's refusal
to deliberate was "nothing other than an attempt by a
juror to avoid the responsibility [***13] of deliberation;
to avoid the unpleasantries of sequestration; to attempt to
get off the jury. . . ." Instead, he instructed the jury:
Now, I'd like--I'm going to say
something to the jury and I'd like all of
you to listen to me. Each one of you has
taken an oath in this case at the very
beginning. Part of that oath is if the
occasion warrants deliberations, to
deliberate in accordance with the Court's
instruction. Deliberate in accordance with
the evidence in this case. Plus, I indicated
to you yesterday, your verdict cannot be
true unless it is strictly and solely in
accordance with the evidence.
You have a responsibility now and a
duty to deliberate. . . . And I instruct you
to continue with your deliberations and
you will continue in accordance with the
manner that I've instructed you.
II.
Among other things, defendants argue that the trial
judge improperly failed to voir dire juror M.B. after he
reported that [**842] he [*12] could no longer be
"fair." They also argue that the judge abused his
discretion by refusing to conduct a voir dire when the
jurors reported that one juror was in "fear of his life."
They also argue that a mistrial should have been granted.
[***14] We agree that the judge improperly declined to
make necessary inquiries on these subjects.
The Sixth Amendment of the United States
Constitution and Article I, paragraph 10 of the New
Jersey Constitution guarantee criminal defendants "the
right to ... trial by an impartial jury." State v. Williams, 93
N.J. 39, 60, 459 A.2d 641 (1983); State v. Scherzer, 301
N.J. Super. 363, 486, 694 A.2d 196 (App.Div.), certif.
denied, 151 N.J. 466, 700 A.2d 878 (1997). Thus, "a
defendant is entitled to a jury that is free of outside
influences and will decide the case according to the
evidence and arguments presented in court in the course
of the criminal trial itself." Williams, supra, 93 N.J. at
60, 459 A.2d 641. As a result, the trial judge must take
action to assure that the jurors have not become
prejudiced as a result of facts which "could have a
tendency to influence the jury in arriving at its verdict in
a manner inconsistent with the legal proofs and the
court's charge." Scherzer, supra, 301 N.J. Super. at 486,
694 A.2d 196 (quoting Panko v. Flintkote Co., 7 N.J. 55,
61, 80 A.2d 302 (1951)). "The test is 'not whether the
irregular matter actually influenced the result but whether
it had the capacity [***15] of doing so.'" Scherzer,
supra, 301 N.J. Super. at 486, 694 A.2d 196 (quoting
Panko, supra, 7 N.J. at 61, 80 A.2d 302).
In State v. Bey, 112 N.J. 45, 74-92, 548 A.2d 846
(1988), a capital murder case, our Supreme Court
emphasized the need for determining whether jurors were
exposed to prejudicial outside influences. There the
Court held that the trial court's refusal to voir dire the
jury about newspaper articles concerning defendant
violated defendant's right to a fair trial and required
reversal. Id. at 81, 548 A.2d 846. It concluded that where
there is a realistic possibility that prejudicial information
reached the jurors, the court should conduct a voir dire to
determine whether any exposure [*13] occurred and,
where it occurred, to determine what was learned and
whether the jurors remained capable of fulfilling their
duties in an impartial manner. Id. at 86-87, 548 A.2d 846.
The Court made clear that:
The procedure of questioning an
impaneled jury when prejudicial publicity
threatens the fairness and integrity of a
defendant's trial should not be invoked
begrudgingly. While we do not mean to
suggest that any publicity relating to the
defendant or the proceedings will
automatically require [***16] that the
jury be polled, a court might properly
choose to err on the side of caution when
ruling on such motions. The procedure is
prophylactic in nature, designed to
63
uncover potential prejudice to extremely
significant constitutional rights that might
otherwise go wholly undetected, and to do
so at a time when corrective measures
remain possible, that is, before ordering a
new trial has become the only option.
Hence the polling procedure operates to
safeguard the rights of the accused and
vindicate societal interests in the fair and
efficient administration of the criminal
justice system. Further, ... the mid-trial
voir dire imposes a minimal burden on the
court system.
Id. at 89-90, 548 A.2d 846(citations
omitted).
Bey, supra, deals with the need to voir dire the jury
concerning publicity where it is unclear whether the jury
has been exposed to mid-trial publicity. See also State v.
Harris, 156 N.J. 122, 150-54, 716 A.2d 458 (1998).
However, where, as here, there is the possibility of actual
juror taint or exposure to extraneous influences
(including jury misconduct and "comments made to
jurors by outside sources"), the judge must voir dire that
[***17] juror and, in appropriate circumstances, the
remaining jurors. State v. Scherzer, supra, 301 N.J.
Super. at 486-91, 694 A.2d 196 (where the judge's
conduct of jury inquiries was found to be adequate).
In State v. Wormley, 305 N.J. Super. 57, 68-70, 701
A.2d 944 (App.Div.1997), certif. denied, 154 N.J. 607,
713 A.2d 498 (1998), at a lunch break during the first day
of trial, a juror told the judge that she knew the State's
primary witness and was familiar with the circumstances
of the crime. Id. at [**843] 68, 701 A.2d 944. The juror
denied that she had revealed her knowledge to the other
jurors. Id. at 69, 701 A.2d 944. The judge excused the
juror without questioning the other jurors. Id. On appeal
following conviction, we held that the judge's failure to
make inquiry of the remaining jurors was reversible
error, even though the judge was [*14] not asked to voir
dire them. Id. We reasoned that even though the
dismissed juror denied conveying her knowledge to the
other jurors, "there was a strong likelihood that, even
indirectly or unintentionally, she may well have." Id. at
70, 701 A.2d 944.
In State v. Scherzer, supra, we recently summed up
the law in this area:
The thrust of the New Jersey and federal
cases [***18] on mid-trial allegations of
jury misconduct is that the trial judge
must make a probing inquiry into the
possible prejudice caused by any jury
irregularity, relying on his or her own
objective evaluation of the potential for
prejudice rather than on the jurors'
subjective evaluation of their own
impartiality. Although the trial judge has
discretion in the way to investigate
allegations of jury misconduct, an
adequate inquiry on the record is
necessary for the purposes of appellate
review.
Id. at 487-88, 694 A.2d 196 (citation
omitted; emphasis added).
Stated differently,
[W]hen a circumstance arises
suggesting that a juror may in fact be
tainted . . . . the trial court, upon being
apprised of such a circumstance, is
obliged to interrogate the juror in the
presence of counsel and to determine if
there is a taint and if so, if any other jurors
have been infected thereby.
Pressler, Current N.J. Court Rules,
comment 2 on R. 1:16-1 (1999).
We conclude that the trial judge should have
questioned M.B. about his statements that he could no
longer be fair, particularly after indicating that during the
trial's recess he had heard things he [***19] did not want
to hear. M.B.'s statement revealed that he may have been
exposed to outside information. The jury had recently
come back from an almost month long break in the trial.
It was at least possible that M.B. may have been exposed
to prejudicial information during that time and may have
shared that information with other jurors. Moreover,
while the judge understood M.B.'s statements may be
read to be a mere reaction to sequestration or an effort to
get out of jury duty, which in itself required further
inquiry, there were other inferences warranting
development. Without the judge questioning M.B. about
what he meant by his statements, we have no way of
knowing what his exposure may have been or how
prejudicial that exposure was. As the Court stated in Bey,
supra, 112 N.J. at 89-90, 548 A.2d 846, without a voir
dire, "potential prejudice to extremely significant
constitutional rights ... might otherwise go wholly
undetected." [*15] The prior voir dire referred to by the
judge as a basis for not interviewing M.B. on this
occasion all occurred before the January 1993 break and
the indication that during the break he may have heard
something unduly prejudicial to at least one of the
64
[***20] parties.
The failure to interview M.B. takes on added
significance in light of the juror notes received by the
judge during deliberations. While a judge cannot make
inquiry into the deliberative process as such, or the
mental processes by which a juror reaches his or her
decision, State v. LaFera, 42 N.J. 97, 106, 199 A.2d 630
(1964), State v. Kociolek, 20 N.J. 92, 100, 118 A.2d 812
(1955) (involving post-verdict applications), the fact that
the jurors reported that M.B. (juror number 8) at first
declined to deliberate and that a juror, perhaps M.B., was
"in fear of his life," required at least inquiry into whether
one or more jurors were concerned about extraneous
matters other than the evidence and law as charged by
the judge. See State v. Valenzuela, 136 N.J. 458, 643
A.2d 582 (1994); LaFera, supra; Kociolek, supra; State
v. Vergilio, 261 N.J. Super. 648, 655-56, 619 A.2d 671
(App.Div.), certif. denied, 133 N.J. 443, 627 A.2d 1147
(1993) (inquiry required of distraught juror who sought
to talk with judge).
New Jersey courts have permitted and, indeed, have
required voir dire inquiry of jurors, even while
deliberating, about the possibility and impact of outside
or [***21] non-evidentiary extraneous considerations or
influences [**844] affecting the ability of a juror to be
fair and impartial. See State v. Hightower, 146 N.J. 239,
248-49, 265-67, 680 A.2d 649 (1996); State v. Grant, 254
N.J. Super. 571, 580-87, 604 A.2d 147 (App.Div.1992). 3
See also Valenzuela, supra (requiring the court to
determine why a juror was unable to continue
deliberating); Vergilio, supra (requiring voir dire of
distraught juror).
3
In Grant one voir dire occurred during
deliberations when a juror indicated she could not
be "fair" and one occurred after trial when a juror
reported that another juror advised the panel of
her husband's professional opinion about the
significance of some evidence.
[*16] The issue now before us, therefore, is the
remedy to be employed when there is doubt about the
integrity of the deliberative process, there is an indication
that at least one juror may have been affected by outside
influences, and the trial judge conducted no inquiry to
ascertain [***22] whether there were such influences
and the reasons therefor.
III.
In State v. Reevey, 159 N.J. Super. 130, 387 A.2d
381 (App.Div.), certif. denied, 79 N.J. 471, 401 A.2d 228
(1978), defendant alleged at trial that one of the jurors
was sleeping during summations and instructions. The
trial judge took no action. We held this was error, stating
that "at the very least under the circumstances of this
case the trial judge should have conducted a hearing and
questioned this juror as to whether she was in fact dozing
or sleeping, or whether she was listening to the
summations and the charge but merely had her eyes
closed." Id. at 134, 387 A.2d 381. We, therefore,
remanded to the trial court with instructions to hold a
hearing concerning the allegation that the juror was
sleeping during trial. Id. at 135, 387 A.2d 381.
Other appellate courts have also remanded for a
hearing following conviction when the trial court had
failed to investigate an allegation of juror misconduct or
other juror irregularity. In Remmer v. United States, 347
U.S. 227, 228-30, 74 S. Ct. 450, 451, 98 L. Ed. 654, 65556, 1954-1 C.B. 146 (1954), the United States Supreme
Court held that the trial court erred in failing to hold a
hearing on an allegation [***23] that an unnamed person
had offered a juror money in exchange for a favorable
verdict. The Court stated that such contact or tampering
with a juror was presumptively prejudicial but not
"conclusive." 347 U.S. at 229, 74 S. Ct. at 451, 98 L. Ed.
at 656. The Government was, therefore, permitted to
establish, after a hearing, that such contact with the juror
was "harmless to the defendant," id. at 229, 74 S. Ct. at
451-52, 98 L. Ed. at 656, and the Court remanded to the
trial court for such a hearing.
[*17] As the United States Supreme Court later
said in a case in which a juror submitted a job application
to the prosecutor's office and the prosecutor did not
reveal same during the course of trial:
[D]ue process does not require a new
trial every time a juror has been placed in
a potentially compromising situation.
Were that the rule, few trials would be
constitutionally acceptable. The
safeguards of juror impartiality, such as
voir dire and protective instructions from
the trial judge, are not infallible; it is
virtually impossible to shield jurors from
every contact or influence that might
theoretically affect their vote. Due process
means a jury capable and willing to decide
the [***24] case solely on the evidence
before it, and a trial judge ever watchful to
prevent prejudicial occurrences and to
determine the effect of such occurrences
when they happen. Such determinations
may properly be made at a hearing like
that ordered in Remmer and held in this
case.
Smith v. Phillips, 455 U.S. 209, 217,
102 S. Ct. 940, 946, 71 L. Ed. 2d 78, 86
(1982) (footnote omitted).
65
The Supreme Court therefore concluded in Smith that the
post-conviction hearing conducted by the state court was
adequate to determine that the juror was not biased and
the verdict was based exclusively on the evidence. See
United States v. Herndon, 156 F.3d 629, 637 (6th
Cir.1998) ("remand[ing] the case for a Remmer hearing
in which Herndon will have an opportunity to prove
actual bias" based on "extraneous" influence on juror).
[**845] In United States v. Angulo, 4 F.3d 843,
846 (9th Cir.1993), one juror reported that she received a
threatening telephone call in the course of trial and
discussed the call with the rest of the jury. The trial judge
dismissed the juror who had received the call but refused
to question the remaining jurors about possible bias. Id.
On appeal, [***25] the Ninth Circuit found "the
potential for bias is so strong that the judge was obliged
at a minimum to hold a hearing," id. at 847, and
remanded to the district court "to hold an evidentiary
hearing to determine whether the jurors who knew of the
threat were able to act impartially and without bias." Id.
at 848. The court added that "[t]he government will be
required to show that the threatening telephone call was
harmless beyond a reasonable doubt to defendants. . . . If
the government cannot make that showing, a new trial
should be ordered." Id. at 848 (citation omitted). See also
United States v. Barrett, 703 F.2d 1076, 1082-83 (9th
Cir.1983).
[*18] We recognize that there are problems
inherent with a remand almost six years after the verdict.
Whether or not M.B. was the juror in "fear," that juror
will have to be identified and the impact and effect of
what was said to the other jurors will have to be
considered in assessing whether defendants received a
fair trial. However, the issues now before us were raised
during trial and not as a result of post-conviction
revelations, see R. 1:16-1; State v. Koedatich, 112 N.J.
225, 286-90, 548 A.2d 939 (1988); State v. Athorn,
[***26] 46 N.J. 247, 216 A.2d 369, cert. denied, 384
U.S. 962, 86 S. Ct. 1589, 16 L. Ed. 2d 674 (1966), and
the fact that six years have passed since the verdict was
rendered does not by itself prohibit the inquiry. In State
v. Marshall, 148 N.J. 89, 690 A.2d 1, cert. denied, 522
U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997), our
Supreme Court denied defendant's request for a postconviction inquiry regarding the existence of extraneous
influences on the jury verdict. The Court did so in the
absence of sufficient "showing" of such influence and not
because seven years had passed since the verdict. 148
N.J. at 280, 690 A.2d 1.
Our Supreme Court has recently reminded us that, in
order to "promote the finality of jury verdicts" and "aid
the deliberative process itself, allowing each juror the
freedom to discuss his or her thoughts," generally "we
ought not reconvene the jury that convicted ... [a]
defendant." State v. Harris, 156 N.J. 122, 154, 716 A.2d
458 (1998). There the issue dealt with the trial court's
failure to poll the jury about mid-trial publicity because
of its presumption that the jury would follow its prior
instructions not to read anything about the case. [***27]
Id. at 152, 716 A.2d 458. But, independent of the
difference between media publicity and whatever gave
rise to the juror's concerns in this case, the Harris Court
also recognized that jurors can be questioned after trial in
"extraordinary" circumstances "when there is a strong
representation that a defendant may have been harmed by
juror misconduct." Id. at 154, 716 A.2d 458 (citing State
v. Koedatich, supra) (which referred to the
"extraordinary procedure" based on a "strong showing,"
112 N.J. at 291-92, 548 A.2d 939). While here there is no
indication a juror disregarded instructions concerning
[*19] discussing the case or reading about it, the record
reflects the real possibility that the juror deliberations
were affected by an outside influence. Therefore, the
failure to voir dire in the circumstances presented to the
trial judge calls for the "extraordinary procedure,"
Harris, 156 N.J. at 154, 716 A.2d 458, of a remand to
interview the jurors.
In State v. Miller, 178 Ariz. 555, 875 P.2d 788
(1994), a dismissed alternate juror left a note on the
windshield of one of the remaining jurors, which said
either "[h]e's guilty" or "[m]y vote is guilty." Id. at 790.
The trial court refused the defense request [***28] to
take testimony or question the sitting jurors. Ibid. The
Arizona Supreme Court held that the trial court abused
its discretion in failing to hold an evidentiary hearing. Id.
The Court recognized the difficulty of ordering a hearing
on this issue almost four years after the original trial,
stating:
The arguments against ordering a
hearing at this late date are
understandable. Memories fade with time.
Assuming the jurors can be reassembled,
testimony obtained now might be suspect,
and its reliability subject to challenge.
Moreover, the [**846] judge who saw the
witnesses and heard the case on its merits
has long since retired. Ordering a hearing
now will leave another judge who had no
involvement in the trial with the difficult
task of determining whether the
communication prejudiced the verdict.
Id. at 790.
In these circumstances, the court remanded to the trial
court "to determine whether a hearing at this late date is
feasible. If so, the judge is to proceed with the hearing
and make appropriate findings consistent with this
66
opinion. If not, the judge must set aside the verdict and
order a new trial." Id. at 793. Accordingly, the Miller
court held [***29] that "[o]n the remand ..., the trial
judge must award a new trial unless the state can prove
beyond a reasonable doubt that the contact did not impact
the verdict." Id. at 793; see also Remmer v. United
States, supra, 347 U.S. at 229, 74 S. Ct. at 451, 98 L. Ed.
2d at 656; United States v. Angulo, supra, 4 F.3d at 848.
Here, the trial judge is still on the bench, and we are
satisfied that the mere passage of time should not by
itself preclude a remand. We, therefore, conclude that a
remand is [*20] required for proceedings similar to
those in Miller, and that unless the State demonstrates
that the jury was not tainted (see Remmer, supra, 347
U.S. at 229, 74 S. Ct. at 451, 98 L. Ed. 2d at 656; State v.
Miller, supra, 875 P.2d at 792, n. 2), and that the
deliberating jury rendered a decision based exclusively
on the evidence, free of taint by improper or extraneous
influences, State v. Miller, supra, 875 P.2d at 793, "the
trial judge must award a new trial." Ibid.
IV.
If the trial judge grants a new trial, only three other
issues raised on this appeal need be addressed by us.
Most of the others will become moot by virtue of the new
trial [***30] and the additional proceedings which can
be conducted in advance thereof, or will turn on the
actual developments at the new trial. Similarly, issues of
severance will have to be reconsidered by the trial judge
in light of the acquittals of those not convicted on counts
one and two and the charges remaining against them. In
essence, we find no basis to preclude retrial on all
charges on which the defendants were convicted as we
reject the assertions by individual defendants of
evidentiary insufficiency of specific counts. State v.
Reyes, 50 N.J. 454, 459, 236 A.2d 385 (1967); State v.
Ball, 268 N.J. Super. 72, 133, 632 A.2d 1222
(App.Div.1993), aff'd, 141 N.J. 142, 661 A.2d 251
(1995), cert. denied sub nom. Mocco v. New Jersey, 516
U.S. 1075, 116 S. Ct. 779, 133 L. Ed. 2d 731 (1996).
There are three discrete legal issues, however, which
we feel should be settled before another lengthy trial is
conducted.
A.
We reject defendants' contention that conspiracy
cannot provide a basis, or "predicate act," for
racketeering. In this respect we agree with the trial
judge's careful analysis, and interpret N.J.S.A. 2C:411(a)(1) to include a conspiracy. Federal courts have
[***31] so interpreted 18 U.S.C.A. § 1961(1)(A), see,
e.g., United States v. Echeverri, 854 F.2d 638, 648-49
(3d Cir.1988); United States v. Benevento, 836 F.2d 60,
72 (2d Cir.1987), cert. [*21] denied, 486 U.S. 1043,
108 S. Ct. 2035, 100 L. Ed. 2d 620 (1988); United States
v. Manzella, 782 F.2d 533, 537 (5th Cir.), cert. denied,
476 U.S. 1123, 106 S. Ct. 1991, 90 L. Ed. 2d 672 (1986),
and our statute was designed to "cover a broader
spectrum of behavior" than the "pattern of racketeering
activity" prohibited by the federal RICO Act. See State v.
Ball, 141 N.J. 142, 167, 661 A.2d 251 (1995), cert.
denied sub nom. Mocco v. New Jersey, 516 U.S. 1075,
116 S. Ct. 779, 133 L. Ed. 2d 731 (1996). Moreover, our
statute, N.J.S.A. 2C:41-1a(2), incorporates the federal
statute which, by case law, has been interpreted to
include conspiracies.
B.
We agree with the trial judge that Judge Donald S.
Coburn's role as Essex County Prosecutor in defending
the appeal of defendants Bisaccia and Corsaro from a
prior conviction and in defending their subsequent
federal habeas corpus petition in that matter does not
require suppression of the wiretaps [**847]
he
authorized in the subsequent [***32] investigation
resulting in this indictment. 4 This investigation did not
commence while Judge Coburn was still a prosecutor,
nor was it conducted by his former office, see State v.
Tucker, 264 N.J. Super. 549, 555, 625 A.2d 34
(App.Div.1993), certif. denied, 135 N.J. 468, 640 A.2d
850 (1994); State v. McNamara, 212 N.J. Super. 102,
108-09, 514 A.2d 63 (App.Div.1986), certif. denied, 108
N.J. 210, 528 A.2d 30 (1987), and we need not decide if
Judge Coburn would be disqualified if he were still
County Prosecutor when this investigation commenced
or had direct involvement in the prior prosecutions. See
Notice to the Bar, "Recusal Policy of the Chief Justice,"
134 N.J.L.J. 1030 (September 3, 1996).
4 See State v. Stefanelli, 78 N.J. 418, 396 A.2d
1105 (1979); Bisaccia v. Attorney General, 623
F.2d 307 (3d Cir.1980).
C.
Defendant Corsaro had been under investigation for
cigarette tax violations and was arrested (and may have
been [*22] arraigned) for receiving stolen cigarettes
before approval was obtained for [***33] consensual
interceptions by Nicholas DiSabatino of conversations he
had with Corsaro. He had counsel at the time. The trial
judge ruled that the recordings were not admissible
against Corsaro "relative to the theft of the cigarette
charge," but were admissible "with respect to other
offenses which were uncovered during the conversations
between DiSabatino and Corsaro." We agree with the
trial judge that recordings of uncounselled statements
with respect to unrelated crimes or offenses for which
defendant has not been arrested or charged need not be
suppressed. 5 See United States v. Kidd, 12 F.3d 30 (4th
Cir.1993), cert. denied, 511 U.S. 1059, 114 S. Ct. 1629,
128 L. Ed. 2d 352 (1994); United States v. Mitcheltree,
67
940 F.2d 1329, 1342-43 (10th Cir.1991); United States v.
Giovanelli, 747 F. Supp. 875, 885-86 (S.D.N.Y.1989)
(confidential informant's recording of defendant on trial
for State offenses admissible with respect to later charged
federal racketeering charges; defendant had not been
charged with racketeering when recordings were made);
United States v. Napolitano, 552 F. Supp. 465, 480-81
(S.D.N.Y.1982) (defendant's statements recorded by
informant after [***34] indictment and conviction on
various charges admissible in RICO prosecution when
the statements were made before defendant was charged
in RICO prosecution); 6 see also State v. Tucker, 137 N.J.
259, 277-78, 645 A.2d 111 (1994), cert. denied, 513 U.S.
1090, 115 S. Ct. 751, 130 L. Ed. 2d 651 (1995). We add
that while RPC 4.2 has been interpreted and amended
since the interceptions in question, it remains clear that it
applies in the criminal context only after adversarial
proceedings have begun by arrest, complaint or
indictment on the charges which are the subject of the
communication. The holding [*23] of State v. CIBAGEIGY Corp., 247 N.J. Super. 314, 320-21, 325, 589
A.2d 180 (App.Div.1991), appeal dismissed, 130 N.J.
585, 617 A.2d 1213 (1992), superseded by In re Opinion
668, 134 N.J. 294, 633 A.2d 959 (1993), to this effect has
been noted with approval in the commentary to the
Report of the Committee which recommended the 1996
amendments to RPC 1.13 and RPC 4.2. See Report of
Special Committee on RPC 4.2, 145 N.J.L.J. 318 (1996).
7
See also State v. P.Z., 152 N.J. 86, 116 n. 6, 703 A.2d
901 (1997).
5 The State acknowledges that the ruling would
not permit use of the recordings as "evidence
against defendant [Corsaro] on the count of
conspiracy to commit receiving stolen property,
nor on the corresponding predicate acts for
racketeering and conspiracy to commit
racketeering."
[***35]
6 No attorney could ethically counsel defendant
with respect to ongoing crimes. See, e.g., In re
Nackson, 114 N.J. 527, 555 A.2d 1101 (1989).
7 State v. CIBA-GEIGY, supra, 247 N.J. Super.
at 316, 589 A.2d 180, also noted "the general
proposition under existing New Jersey law that
evidence obtained in violation of a disciplinary
rule need not be suppressed."
V.
If the trial judge denies a new trial, the defendants
may seek to have the appeal reinstated, and we will
further consider all the issues raised. Defendants shall
also order a transcript of the remand proceedings, and the
parties shall advise the Clerk within thirty days of the
trial court's order if they [**848]
desire to file
supplemental briefs directed to the remand proceedings.
The matter is remanded to the Law Division for
further proceedings consistent with this opinion.
68
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. DENNIS PORTER, DEFENDANT-APPELLANT
No. A-3693-82T4
Superior Court of New Jersey, Appellate Division
210 N.J. Super. 383; 510 A.2d 49; 1986 N.J. Super. LEXIS 1255
April 15, 1986, Submitted
May 13, 1986, Decided
SUBSEQUENT HISTORY:
[***1] Approved for
Publication May 23, 1986.
Certification denied by State v. Porter, 105 N.J. 556, 523
A.2d 191, 1986 N.J. LEXIS 1472 (1986)
Certification denied by State v. Porter, 105 N.J. 557, 523
A.2d 191, 1986 N.J. LEXIS 1473 (1986)
Certification denied by State v. Porter, 109 N.J. 58, 532
A.2d 1121, 1987 N.J. LEXIS 603 (1987)
PRIOR HISTORY: On appeal from Superior Court of
New Jersey, Law Division, Passaic County.
COUNSEL: Thomas S. Smith, Acting Public Defender,
attorney for appellant (Michael J. Witt, Designated
Counsel, of counsel and on the brief).
W. Cary Edwards, Attorney General of New Jersey,
attorney for respondent (Jane F. Tong, Deputy Attorney
General, of counsel and on the brief).
JUDGES: Pressler, Dreier and Bilder. The opinion of
the court was delivered by Dreier, J.A.D.
OPINION BY: DREIER
OPINION
[*387] [**50] Defendant has appealed from his
conviction on three counts of first degree armed robbery,
N.J.S.A. 2C:15-1, and two counts of possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4. He
was sentenced to a term of 20 years with a 10 year parole
ineligibility, consecutive to his present sentence for
armed robbery, conspiracy, possession of a weapon for
an unlawful purpose and aggravated assault. [**51] He
was also sentenced to two concurrent 20-year terms for
the other two contemporaneous armed robberies and to a
concurrent 10-year term for the merged possession
counts.
Defendant was alleged to have participated [***2]
in an armed robbery of Gonzalez' Nightclub in the City
of Passaic on November 17, 1980, during which the other
perpetrators were armed with a handgun, described by
defendant as inoperable, and a tree branch. Since the
inculpating statements of the others involved were not
admissible in this case, defendant's participation was
established primarily on the basis of his confession.
On this appeal defendant has urged eleven bases for
reversal:
POINT I.
The court below erred in admitting
defendant's confession into evidence since
it was the fruit of unethical conduct by the
Passaic County Prosecutor's office.
POINT II.
The court below abused its discretion
in prohibiting the defense from crossexamining the state's witness, Barry
Skwiersky, Esquire, concerning his
conduct in taking defendant's confession.
POINT III.
The defendant was deprived of his
right to a speedy trial guaranteed by the
state and federal constitutions.
POINT IV.
The court below erred in failing to
merge the convictions of possession of
weapons into the convictions of robbery.
POINT V.
The court below erred in failing to
charge the jury that the state had the
burden to prove that the gun was [***3]
operable in order to find the defendant
guilty of robbery in the first degree and
guilty of possession of a firearm for
unlawful purposes.
POINT VI.
[*388] The court below abused its
discretion in allowing testimony of
defendant's prior convictions to impeach
his credibility.
POINT VII.
69
The allowance of testimony of
defendant's prior conviction of burglary to
impeach his credibility was error under
the doctrine of collateral estoppel and/or
because of defendant's minority at the
time of its commission.
POINT VIII.
The admission of the uncertified
transcript prepared from defendant's taped
confession was error under Evidence Rule
70.
POINT IX.
The admission of the tree branch was
error since the state failed to lay a proper
foundation for its introduction.
POINT X.
The twenty-year sentence imposed
upon defendant was manifestly excessive
and an abuse of discretion.
POINT XI.
The defendant's convictions must be
vacated because of the aggregate effect of
all the errors below.
I
The central issue in the case is the admissibility of
defendant's confession made and recorded while he was
jailed in Middlesex County for a separate offense.
Two days [***4] after the robbery, defendant and
three others were apprehended by the Edison Police as
suspects in a then-recent motel robbery. During
questioning, defendant mentioned his complicity in the
Passaic robbery whereupon an Edison police officer
telephoned Passaic Detective Osbuth. Osbuth and
another officer first visited defendant in the Middlesex
County jail on November 20, 1980, but defendant was
unwilling to speak with them. On a subsequent visit
defendant again was reticent, but Detective Osbuth left
his telephone number in case defendant later decided to
respond.
In mid-January, defendant telephoned
Detective Osbuth and left a message that he wished to
speak with him. A few days later, on January 16, 1981,
Detective Osbuth, two other police officers [**52] and
Assistant Passaic County Prosecutor Barry Swiersky
interviewed defendant at the Middlesex County jail.
Defendant was unrepresented at the interrogation,
although Swiersky "felt certain that somebody [*389]
must have been assigned to him" with respect to the
Middlesex County matter. Osbuth and Swiersky both
testified that defendant had been advised of his Miranda
rights at least twice prior to the interview, [***5] and it
was apparent that he understood them. He was also read
his rights from a form by a police officer before the
taping began, and the rights were again meticulously
reviewed by Swiersky at the beginning of the taped
interview. Defendant specifically and unequivocally
waived his right to consult an attorney prior to giving his
statement.
Defendant contradicted the State's version of the
events in material detail. He denied initiating the
conversation with Swiersky and further claimed that his
confession was based upon facts gleaned from a rapid
examination of codefendants' statements.
He also
contended that the State had made off-the-record
sentencing promises.
Swiersky denied any such
inducements.
The trial judge denied defendant's motion to
suppress and made credibility determinations in favor of
the State. He further found that the interview had been
initiated by defendant. As to the reliability of the
confession, the judge found "incredible Mr. Porter's
testimony that after being shown these statements, he
was able to piece together this detailed version of what
transpired." He ruled the statement admissible.
The admission of a confession may be challenged
under [***6] either the Fifth or Sixth Amendments to the
United States Constitution. Under the Fifth Amendment,
the statement must be excluded if it was not made
voluntarily. Oregon v. Elstad, 470 U.S. 298,
, 105
S.Ct. 1285, 1292, 84 L.Ed.2d 222, 231 (1985); State v.
Williams, 197 N.J. Super. 127, 130 (App.Div.1984),
certif. den. 99 N.J. 233 (1985). The Sixth Amendment
precludes admission of the confession if it was made at a
time when defendant had a right to counsel and did not
effectively waive that right. Maine v. Moulton, U.S. ,
106 S.Ct. 477, 88 L.Ed.2d 481 (1985). We have no
reason [*390] to disturb the trial judge's factual
findings; they effectively eliminate any Fifth Amendment
attack upon the admission of this confession. We must,
however, review the Sixth Amendment arguments in
view of recent pronouncements of the United States
Supreme Court and trends evident in our sister states.
The issue here is whether under the Sixth
Amendment the waiver of counsel is effective when a
defendant is represented by counsel in other criminal
proceedings for which he is then incarcerated, but the
right to counsel has not yet attached [***7] with respect
to the charge which is the subject of the waiver.
The majority view, which accords efficacy to a
waiver in such circumstances, builds upon Edwards v.
Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378
(1981) and Oregon v. Bradshaw, 462 U.S. 1039, 103
S.Ct. 2830, 77 L.Ed.2d 405 (1983) and presages the more
70
recent United States Supreme Court treatment of this
issue in Moran v. Burbine, U.S. , 106 S.Ct. 1135, 89
L.Ed.2d 410 (1986), discussed infra. This analysis is
exemplified by State v. O'Neal, 238 Kan. 183, 708 P.2d
206, 208-209 (1985) (accused may effectively waive
right to counsel during any police investigation so long
as waiver is knowing and intelligent), as well as Lofton v.
State, 471 So.2d 665, 667 (Fla.Dist.Ct.App.1985)
(rejecting the "Rogers or so-called 'New York Rule'").
And see People v. Ellis, 132 Ill.App.3d 778, 87 Ill.Dec.
594, 477 N.E.2d 720 (App.Ct.1985); and State v.
Campbell, 367 N.W.2d 454 (Minn.1985).
An intermediate view, which would disallow a
waiver only if resulting from improper police conduct, is
expressed in State v. Quinn [***8] , 64 Md.App. 668,
498 A.2d 676, (Md.Ct.Spec.App.1985) (waiver after
defendant [**53] had invoked right to counsel was
improperly induced by police officer who showed
defendant a copy of charges containing codefendant's
implication of defendant as "the one who pushed the"
robbery).
The minority New York rule resolves the question
by determining whether defendant had a "so-called
indelible right to [*391] counsel" at the time of his
waiver. People v. Bertolo, 65 N.Y.2d 111, 116, 480
N.E.2d 61, 64, 490 N.Y.S.2d 475, 478 (Ct.App.1985). The
rule was established by People v. Rogers, 48 N.Y.2d 167,
173, 397 N.E.2d 709, 713, 422 N.Y.S.2d 18, 22
(Ct.App.1979), where the court determined that "even
when the interrogation concerns unrelated matters,"
. . . once a defendant is represented by
an attorney, the police may not elicit from
him any statements, except those
necessary for processing or his physical
needs. Nor may they seek a waiver of this
right, except in the presence of counsel.
Accord, People v. Bartolomeo, 53 N.Y.2d 225, 423
N.E.2d 371, 440 N.Y.S.2d 894 (Ct.App.1981). But cf.
People v. Colwell [***9] , 65 N.Y.2d 883, 482 N.E.2d
1214, 493 N.Y.S.2d 298 (Ct.App.1985), (unrepresented
waiver held effective where defendant was represented
on other charge on appeal after conviction); People v.
Mehan, 112 App.Div.2d 482, 490 N.Y.S.2d 897, at 899900 (App.Div.1985) (indelible right did not attach with
regard to New York charges to a defendant arraigned in
New Jersey, where New York investigators were
incorrectly informed by defendant that he had not been
assigned New Jersey counsel).
We have yet to determine in New Jersey if
acceptance of an uncounselled waiver by a suspect who
is represented in another pending matter violates the
substantially similar provisions of the Sixth Amendment
of the United States Constitution and N.J.Const. (1947),
Art. I, par. 10. The United States Supreme Court has
recently reiterated that Fifth and Sixth Amendment rights
are not sufficiently similar that a valid Fifth Amendment
waiver necessarily constitutes an enforceable waiver of
Sixth Amendment rights. Michigan v. Bladel, U.S. ,
106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). Most instructive,
however, is Moran v. Burbine, supra, where the Court
held [***10] that the defendant's waiver and confession,
made while an attorney retained by defendant's family
sought to provide representation but was misled by
police, violated neither the Fifth nor Sixth Amendment
rights of defendant. There the Court held that the police
misconduct toward the attorney made
[*392]
defendant's statements no less voluntary and that the
right to counsel did not attach where the questioning was
before the initiation of "adversary judicial proceedings,"
citing Maine v. Moulton, supra, decided but three months
earlier. Cf. State v. Farrow, 61 N.J. 434, 449 (1972),
cert. den. 410 U.S. 937, 93 S.Ct. 1396, 35 L.Ed.2d 602
(1973).
A resolution of this issue under Moran would thus
require a two-pronged analysis, first a determination of
whether defendant was represented by counsel at the
time of the interrogation and, second, a determination
whether adversary judicial proceedings had been
initiated. Both questions often are directly linked to the
"first appearance" (formerly called a "preliminary
hearing"), R. 3:4-2. Cf. State v. Melendez, 165 N.J.
Super. 182, 183-186 (App.Div.1979). R. 3:4-2 provides
that at the [***11] first appearance before the court for
an indictable offense an indigent defendant is referred to
the Office of the Public Defender. It is clear from a
reading of R. 3:27-1 that the representation, ordinarily
initiated prior to a defendant's plea, continues in the
matter through and including any direct appeal as well as
an initial post-conviction proceeding, appeal therefrom,
and such other proceedings as would warrant the
assignment of counsel pursuant to court rules. See also
N.J.S.A. 2A:158A-5. 1
1 Of course, if private counsel is engaged and
generally represents a defendant, the terms of the
specific arrangement would supersede the
statutory obligations of assigned counsel.
Accordingly we limit our holding to cases in
which a defendant is not represented by retained
counsel on any pending charge at the time of the
waiver. We expressly do not address the efficacy
of the waiver where there is retained counsel.
[**54] Although defendant was in custody (a
relevant consideration for a Fifth [***12] Amendment
analysis), the interrogation during which defendant
confessed was prior to the filing of any complaint
71
concerning the Passaic matter, and thus necessarily prior
to his first appearance before the court. Neither the court
rules nor statute require assignment of counsel at this
early investigatory stage. Indeed, it would be intolerable
if the [*393] police were subject to more than the
Miranda obligations imposed by the Fifth Amendment at
this investigatory stage. The restrictions on interrogation
should be no different merely because defendant was
represented in another matter. See Lofton v. State, supra,
471 So.2d at 667 (defendant's incriminating statement
regarding sexual battery investigation held admissible
although made after unrepresented waiver where he had
been previously assigned public defender for unrelated
burglary charge).
We determine that New Jersey will not follow the
New York Sixth Amendment waiver rule in the situation
before us. For present purposes we apply Moran v.
Burbine, supra, and determine that defendant was
unrepresented when he waived his right to counsel, since
his right to assigned counsel on the Passaic charge had
[***13] not yet ripened at the time of his confession and
the scope of representation by counsel assigned in the
Middlesex County matter did not encompass the
unrelated Passaic charge. Cf. State v. Farrow, supra, 61
N.J. at 449; State v. Melendez, supra, 165 N.J. Super. at
183. Since on a sufficient record the trial judge also
determined that defendant was not improperly induced to
waive his right to counsel, we find no basis for
determining that there was any improper conduct or any
violation of defendant's Sixth Amendment rights in the
taking or admission of his confession.
Defendant also argues that ethical violations by the
prosecutor require exclusion of defendant's statement. 2
The first alleged violation is of the standard, now
embodied in RPC 3.8(c), prohibiting a prosecutor from
seeking "to obtain from an unrepresented accused a
waiver of important post-indictment pretrial rights." In
this case the waiver was pre-indictment and [*394] was
determined factually to have been voluntarily made by
the accused.
2 This issue was also implicated in State v.
Darby, 103 N.J. 493 (1986), where the Supreme
Court in summary order, granted certification and
remanded to this court the issue of a "defendant's
Sixth Amendment claim that his right to counsel
was violated by the post-conviction interrogation
. . . by representation of the prosecutor," citing
the comment to RPC 3.8 and United States v.
Callabrass, 458 F.Supp. 964 (S.D.N.Y.1978).
[***14] In addition, defendant has claimed that
there was a violation of the ethics rule, now embodied in
RPC 4.2, forbidding communication with a party known
by a lawyer to be represented by another attorney "in the
matter," unless the lawyer either has the consent of the
other attorney "or is authorized by law to do so."
Although it was apparent that defendant was represented
by an attorney in the Middlesex County case, such
representation was not "in the matter" of the Passaic
charges. Also, a prosecutor has the general duty to aid in
the investigation of a crime. N.J.S.A. 2A:158-5. He is
only precluded, as noted in our discussion of RPC 3.8(c),
from obtaining waivers of post-indictment pretrial rights
from an unrepresented accused. The prosecutor thus was
"authorized by law" to engage in the questioning that
occurred in this case.
We, therefore, also find no ethical impropriety on
the part of the assistant prosecutor. We also note in
passing that violation of the Rules of Professional
Conduct do not necessarily constitute a basis for
asserting State action sufficient to justify a claim of
deprivation of a constitutional right. The exclusionary
rule is intended [**55]
[***15] to vindicate a
constitutional right. If the confession otherwise meets
constitutional muster, an ethical violation alone does not
rise to a deprivation of a constitutional right.
II
Defendant next claims that he was precluded from
fully cross-examining Swiersky concerning his
knowledge of whether defendant had counsel at the time
the confession was given. The court stated that such line
of questioning would open the door to a showing that
defendant was in jail for committing crimes in Middlesex
County. We note that a reasonable alternative would
have been for the court to have limited the questioning to
whether defendant was represented in "another [*395]
matter." Although this latter procedure was preferable,
we have determined under Point I that defendant's
representation by an attorney on the unrelated Middlesex
County charge had little if any relevance to this
proceeding. Any error, therefore, was harmless. R.
2:10-2.
III
Defendant's claim of a violation of his right to a
speedy trial is specious. The four part test of Barker v.
Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2191, 33
L.Ed.2d 101, 117 (1972), has little application in this
case, notwithstanding [***16] the considerable delay in
the trial of the matter. See State v. Szima, 70 N.J. 196,
201, cert. den. 429 U.S. 896, 97 S.Ct. 259, 50 L.Ed.2d
180 (1976). As recently noted in United State v.
Loudhawk, 474 U.S.
,
, 106 S.Ct. 648, 654, 88
L.Ed.2d 640, 652 (1986), "the Speedy Trial Clause's core
concern is impairment of liberty; it does not shield a
suspect or a defendant from every expense or
inconvenience associated with criminal defense."
Defendant's liberty was already impaired because of the
separate offense for which he was incarcerated. There
was no separate arrest for the Passaic charge. If we
72
measure the delay from the time of defendant's
confession, January 16, 1981, we note a significant delay
of two years and two weeks to the commencement of the
trial on February 3, 1983. Yet defendant did not assert
his right to trial until June 24, 1982, an assertion only
reiterated by counsel October 22, 1982 by a notice of
motion. The trial commenced just over three months
later. We find no substantial prejudice. State v. Pace,
171 N.J. Super. 240, 253 (App.Div.1979), certif. den. 84
N.J. 384 (1980).
IV
We agree that [***17] defendant's convictions for
possession of the weapons, a handgun and stick, with the
purpose to use them unlawfully against the victims of the
robbery should have [*396] been merged, not only with
each other, but with the robbery convictions. Under the
facts of this case they were necessary to the multiple
convictions for armed robbery. The separate sentence for
the merged weapons conviction must be vacated,
together with the Violent Crime Compensation Board
penalty assessed for these charges. N.J.S.A. 2C:1-8a(1);
State v. Hardison, 204 N.J. Super. 1, 11-12
(App.Div.1983), certif. den. 99 N.J. 154-55 (1984), aff'd
on other issues, 99 N.J. 379, 382 (1985).
V
Defendant's remaining substantive points are clearly
without merit and need not be separately discussed. R.
2:11-3(e)(2).
As to Point X, we note that the trial judge failed to
state specifically that he was "clearly convinced that the
aggravating factors substantially outweigh the mitigating
factors," N.J.S.A. 2C:43-6b, when he set a 10-year term
of parole ineligibility. See State v. Martelli, 201 N.J.
Super. 378, 385 (App.Div.1985). The judge stated,
however, that there were no [***18]
mitigating
circumstances, but that there [**56] were several
aggravating circumstances, i.e.:
the nature and circumstances of the
offense, robbery while armed [not the
mere fact of the offense, which would
have been barred as an aggravating factor,
State v. Yarbough, 100 N.J. 627, 633-644
(1985)] the seriousness of the
psychological and emotional harm of all
the victims. The risk that the defendant
could commit another offense. The extent
of his prior criminal record. And the need
to deter the defendant and others.
He found that the preponderance of factors required a
maximum term. A fair reading of the three pages of
remarks by the trial judge on sentencing also shows
substantial compliance with the provisions of N.J.S.A.
2C:43-6b. While we are in full accord with the statement
in State v. Martelli, supra, at 382-83, that separate
considerations govern the imposition of a maximum
sentence and a period of parole ineligibility, we do not
read Martelli as requiring the recitation of the statutory
formula, if the finding is implicit. Here there was a
detailed analysis of the crime, the defendant and the
reasons for sentencing. [*397] [***19] We, therefore,
find a sufficient showing that the sentencing judge was
"clearly convinced that the aggravating factors
substantially outweigh the mitigating factors."
The convictions for the weapons offenses shall be
merged into the armed robbery convictions, and the
separate concurrent 10-year sentence for the weapons
offenses as well as the $ 25 Violent Crime Compensation
Board penalty imposed therefor shall be vacated. Except
as so modified, the judgments of convictions are
affirmed.
73
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ISSAC LENIN,
DEFENDANT-APPELLANT.
DOCKET NO. A-6499-03T4
SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
406 N.J. Super. 361; 967 A.2d 915; 2009 N.J. Super. LEXIS 71
March 11, 2009, Submitted
April 7, 2009, Decided
SUBSEQUENT HISTORY: [***1]
Approved for Publication April 7, 2009.
Certification denied by N.J. v. Issac, 2009 N.J. LEXIS
1260 (N.J., Oct. 26, 2009)
PRIOR HISTORY:
On appeal from the Superior
Court of New Jersey, Law Division, Middlesex County,
Indictment Number 02-02-00179.
COUNSEL: Yvonne Smith Segars, Public Defender,
attorney for appellant (Ruth Bove Carlucci, Assistant
Deputy Public Defender, of counsel and on the brief).
Bruce J. Kaplan, Middlesex County Prosecutor, attorney
for respondent (Simon Louis Rosenbach, Assistant
Prosecutor, of counsel and on the brief).
JUDGES: Before Judges AXELRAD, PARRILLO and
MESSANO. The opinion of the court was delivered by
PARRILLO, J.A.D.
OPINION BY: PARRILLO
OPINION
[*367]
delivered by
[**918]
The opinion of the court was
PARRILLO, J.A.D.
In 1997, two separate juries were unable to reach a
verdict as to defendant Issac Lenin's guilt of the murder
with which he was charged. In 2002, after new evidence
was received from a confidential informant, defendant
was re-indicted on charges of first-degree murder,
N.J.S.A. 2C:11-3(a)(1) or (2); possession of a weapon for
an unlawful purpose, N.J.S.A. 2C:39-4(d); and hindering
apprehension or prosecution, N.J.S.A. 2C:29-3(b). This
time, a jury convicted him of all three offenses.
[**919] Defendant now appeals, arguing that
statements of his, recorded by a confidential informant,
violated his [***2] constitutional right to counsel; that
an FBI agent's "behavioral assessment" lacked sufficient
scientific reliability to justify admission; that a police
officer's testimony concerning defendant's guilt and
credibility denied him his right to a fair trial; and that the
prosecutor's improper remarks in opening and summation
denied him a fair trial. For the following reasons, we
affirm.
At around 10:30 a.m. on Monday, April 24, 1995,
Deborah Fowler was found dead in the basement of a
vacant home at 343 Townsend Street in New Brunswick,
where defendant occasionally slept on a mattress. Her
face was bloody and battered so badly that the police
officers could not even determine the victim's gender.
The blood was still wet in places, including where it had
splashed on the wall behind her head.
It was later determined that the victim suffered a
broken jaw and nose and numerous blunt force injuries to
the head, face and neck. She had also been manually
strangled. The blunt force trauma injuries were consistent
with a ball peen hammer, discovered later that afternoon
with human blood on it in the backyard [*368] of an
abutting property, inasmuch as its semi-circular shape
matched the curved lacerations [***3] on Fowler's face.
Cause of death was a combination of manual
strangulation and blunt force trauma. It was believed the
homicide took place where the victim was found,
because blood on her body showed gravitational
draining. Time of death was estimated to be thirty-six to
forty-eight hours before discovery of the body. The
autopsy also revealed high levels of alcohol, cocaine and
morphine in the victim's system, ingested no more than
four hours before her death. Fowler did not display any
defensive wounds.
In the days preceding her death, Fowler was seen in
the vicinity of 343 Townsend Street, in the company of
defendant, who worked construction. On Friday evening,
April 1, 1995, Ernest Wilson, a fellow construction
worker, accompanied defendant and Fowler to his
girlfriend's apartment where the four ingested cocaine
and drank beer. When, thereafter, Wilson refused to
allow defendant to use the bathroom to have sex with
Fowler, defendant complained, "If she don't give me
none, I'm going to take it." Out of defendant's hearing,
Fowler told Wilson's girlfriend, Tracy Lyles, that she was
74
going to get defendant's money and that "he wants some
but I'm not going to give him none." Defendant [***4]
and Fowler left the apartment around 10:00 p.m., at
Lyles' request. Lyles recalled defendant wearing a tool
belt that night with a ball peen hammer, which, according
to Wilson, defendant also carried in his belt at work.
a neighborhood liquor store, reported that he had just
discovered the body of a dead woman when he entered
the house at 343 Townsend Street to use a bathroom, and
asked someone to call the police. An elderly man
volunteered, using a pay phone at a nearby bakery, and
the police responded.
Sometime in April 1995, Israel Lopez saw defendant
bring a mattress into 343 Townsend Street, and, late one
Friday night in April, observed defendant with a "darkskinned lady" whom he later identified as Fowler from a
photograph. On Friday, April 21, at about 10:30 p.m.,
Luis Dastas, who lived across the street from 342
Townsend, saw defendant go into the house with a black
woman. 1
[*370] Later that afternoon, New Brunswick police
interviewed defendant, who repeated his account of
discovering the body when he entered the house to use a
bathroom, but emphatically denied ever having been in
the house before. The house was indeed abandoned with
no working plumbing. However, just a few days earlier,
in applying for financial assistance from the City of New
Brunswick, defendant reported to a social worker that he
lived in an abandoned house on Townsend Street.
1 Dastas did not testify as such at defendant's
two previous trials, supposedly because he
thought the police "had" defendant and would
"put him away," and that he would get himself in
trouble. He also admitted that in 1997, he was
facing a life sentence for aggravated sexual
assault but received a seven-year sentence. He
denied receiving any leniency in exchange for his
1997 testimony. At the time of this trial, he was
back in prison for having violated Megan's Law.
He had seven convictions in all.
[*369] Michael Rodriguez, a sixteen-year old drug
dealer who worked the French/Townsend [**920] Street
area, [***5] knew Fowler for many years and described
her "like an aunt." On Saturday, April 22, at around 6:30
p.m., he sold her a $ 20 bag of cocaine on Townsend
Street, after which she walked down the street toward the
railroad bridge. Rodriguez next saw Fowler at 8:30 p.m.,
coming from the same direction with defendant. She
bought another $ 20 bag of cocaine while defendant
stood a few feet away. At 10:30 p.m., he sold her a third
$ 20 bag of cocaine, but defendant was not with her at
the time.
Earlier that day, Eddie Warren saw defendant near a
liquor store, carrying a ball peen hammer on a belt. Later
that evening, around 8:00 p.m., Warren was on his way
to see his girlfriend when he saw Fowler and defendant
near the railroad tracks. Fowler asked Warren for a
cigarette, but defendant remained under the railroad
bridge, about eight or nine feet from the two.
Not long afterwards, according to the medical
examiner's estimated time of death, defendant, by his
own admission years later, struck Fowler repeatedly with
a hammer, because she pushed him in the face and tried
to take his wallet. Although, at the time, he denied any
involvement in the homicide or even knowing the victim,
defendant was [***6] actually the first to report finding
the dead body. On the Monday following Fowler's death,
April 24, 1995, at about 9:00 a.m., defendant walked into
Months later, on August 23, 1995, after discovering
discrepancies in the statements of defendant and other
witnesses, Sergeant Ronald Kushner and Orlando Roman
from the Middlesex County Prosecutor's Office
interviewed defendant. He denied knowing Fowler and,
again, denied being inside 343 [***7] Townsend Street
before April 24. Roman then confronted defendant with
information (from witnesses Ernest Wilson and Tracy
Lyles) placing him with Fowler on the evening of the
homicide or the night before, buying her cigarettes and
trying to have sexual relations with her. Defendant
denied these reports, but eventually admitted seeing
Fowler at Lyles' house, but insisting she remained behind
after he left. When asked the location of his other
hammer, defendant denied having one. Defendant was
arrested that same day for Fowler's murder.
The investigation remained open even after two
juries in 1997 could not reach a verdict. Years later, on
December 5, 2001, Kushner received a call from
Detective Michael McHale of the Sarasota, Florida
Police Department, who reported that one of his
confidential informants, Pedro Dominguez, had
information about the Fowler murder from defendant,
when the two were together at the county jail.
Specifically, defendant had told Dominguez in Spanish
that "[defendant] had killed a girl here on Townsend
[Street] in [New] Brunswick, that he had hit her on the
head [**921] with a hammer in the forehead." 2
Defendant also told Dominguez that [*371] he had
discarded the hammer, [***8] but that police officers
had found it, and that the site of the murder was a vacant
house. Finally, defendant told Dominguez that he had
entered a store to report a dead woman, that somebody
telephoned the police department, and that police officers
answered the call.
2
There is some indication that Dominguez
heard "Townsend" as "thousand", and actually
referred to the street as "1000 Street."
As a result, Kushner and another investigator
75
traveled to Florida on January 21, 2002, to meet McHale
and Dominguez, a Cuban national who, at the time, was
in federal custody awaiting deportation proceedings.
After the officers interviewed Dominguez, arrangements
were made to transfer Dominguez to the state prison
where defendant was incarcerated. Once the two men
were reunited, Dominguez was fitted with an electronic
transmitter, in the hope of capturing incriminating
information on tape. Eventually, their conversations
generated hours of dialogue including one in which
defendant disclosed how he murdered Fowler.
Specifically, defendant related that Fowler took his
wallet and would not return it, so "Man, I let her have it.
I let her have it and you know how it happened."
Defendant continued, "She [***9] was found dead. I
don't even want to tell the story."
(I)
Defendant's principal contention is that his
surreptitiously recorded statements to the State's
undercover informant were in violation of his Sixth
Amendment right to counsel, as recognized in Massiah v.
United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d
246 (1964). We disagree and hold that the right to
counsel does not survive dismissal of formal criminal
charges against the accused, absent collusion or
chicanery on the part of the prosecution.
The Sixth Amendment to the United States
Constitution provides that "[i]n all criminal prosecutions,
the accused shall enjoy the right ... to have the Assistance
of Counsel for his defence." U.S. Const., Amend. VI. The
purpose of this right is "to enable the defendant to
confront the prosecution and to ensure the integrity of the
judicial process." State v. Sanchez, 129 N.J. 261, 265,
609 A.2d 400 (1992). The right to counsel attaches at the
[*372] pretrial stages and is "triggered when 'adversary
judicial proceedings have been initiated.'" Ibid. (quoting
Kirby v. Illinois, 406 U.S. 682, 688-89, 92 S. Ct. 1877,
1881-82, 32 L. Ed. 2d 411, 417 (1972)). "Adversary
judicial proceedings" begin by way of "formal [***10]
charge, preliminary hearing, indictment, information, or
arraignment." Kirby, supra, 406 U.S. at 689, 92 S. Ct. at
1882, 32 L. Ed. 2d at 417.
In Massiah, supra, a defendant had been indicted,
had retained a lawyer, and had been released on bail. Id.
at 201, 84 S. Ct. at 1200, 12 L. Ed. 2d at 248. While he
was free on bail, a federal agent surreptitiously listened
to incriminating statements made by defendant. Ibid.
Over the defendant's objection, evidence of the
statements was introduced against him at trial. Ibid. The
Court held that eliciting the statements "after [defendant]
had been indicted and in the absence of his counsel"
violated the Sixth Amendment. Id. at 206, 84 S. Ct. at
1203, 12 L. Ed. 2d at 250; see also United States v.
Henry, 447 U.S. 264, 265, 100 S. Ct. 2183, 2184, 65 L.
Ed. 2d 115, 119 (1980); Maine v. Moulton, 474 U.S. 159,
161, 106 S. Ct. 477, 479, 88 L. Ed. 2d 481, 486 (1985).
[**922] Unlike those cases where an indictment
was pending when the incriminating statements were
elicited, ibid., here, the judge dismissed defendant's
murder indictment without prejudice on January 23,
1998, after defendant was tried twice on that and related
charges in 1997 without conviction. [***11] Defendant
was not reindicted until February 13, 2002, shortly after
he was recorded making incriminating statements.
Although no New Jersey case has addressed the right to
counsel in this precise situation, other jurisdictions
considering the issue have uniformly rejected defendant's
position.
In United States v. Mapp, 170 F.3d 328, 333 (2d
Cir.1999), cert. denied sub. nom Moore v. United States,
528 U.S. 901, 120 S. Ct. 315, 145 L. Ed. 2d 200 (1999),
the defendant, Moore, was in a state prison on charges
unrelated to the case on appeal. Shortly thereafter, he was
charged by the state with murder; however, that charge
was dismissed at the state's request, due to evidentiary
[*373] and speedy trial problems. Ibid. While Moore
was still in state prison, federal prosecutors obtained a
writ authorizing Moore's transfer to a courthouse to take
fingerprints. Ibid. As part of that transfer, Moore was
intentionally placed in a holding cell with Sainsbury, a
man authorities suspected was also tied to the murder,
and who was then cooperating with authorities. Ibid.
Moore did, indeed, make incriminating statements about
the murder and other crimes, with which he was charged
by federal authorities. Ibid.
On
[***12] appeal of the resulting federal
convictions, Moore argued that, in arranging for the
meeting with Sainsbury, the state and federal authorities
had improperly colluded to deprive him of his Sixth
Amendment right to counsel. Ibid. The court disagreed,
ibid., holding that the Sixth Amendment right to counsel
does not attach until a prosecution has commenced. Id. at
334. Moreover, the Sixth Amendment is "offensespecific," meaning that it does not prohibit the
questioning of an individual regarding other crimes that
have not been charged. Ibid. The federal prosecution of
Moore was not commenced until six months after his
conversation with Sainsbury, and, thus, his right to
counsel to defend those charges had not yet attached.
Ibid.
Nevertheless, Moore argued that, because state and
federal officials created a "seamless web of incarceration
and prosecution," the right to counsel that attached upon
the filing of the state murder charges survived the
dismissal of those charges and prevented questioning
outside the presence of counsel. Ibid. Yet the district
court had conducted a thorough hearing on the extent of
the federal and state collaboration in the dismissal of the
76
state case and the [***13] initiation of the federal case,
and found no collusion. Ibid. Consequently, the court
found no violation of Moore's Sixth Amendment right to
counsel. Ibid.
In a case similar to Mapp, in United States v.
Montgomery, 262 F.3d 233, 245 (4th Cir.), cert. denied,
534 U.S. 1034, 122 S. Ct. 576, 151 L. Ed. 2d 448 (2001),
the defendant Holland was charged in state court with
murder. State authorities nol prossed the [*374] charges
several months later. Ibid. The nol pross was not an
acquittal or a pardon of the murder and did not preclude a
prosecution for the same offense. Id. at 246. A year later,
three years prior to any charges being initiated, federal
authorities taped an incriminating conversation Holland
had with an informant. Id. at 245-46. Holland argued that
since he "still faced jeopardy" after the state nol prossed
the state murder charge, his Sixth Amendment right to
counsel had never been extinguished. Id. at 246.
The Fourth Circuit held that "[a]doption of this
argument would provide a once-indicted [**923]
defendant with a permanent constitutional shield[,]" and
that "[n]either the Sixth Amendment nor the Supreme
Court's explication of the rights guaranteed by it
countenance such a result." [***14] Ibid. The court
continued: "When an indictment is dismissed (or nol
prossed) and a defendant discharged, the respective
positions of the government and defendant undergo a
most important change--they cease to be adversarial.
Thus, after dismissal of the state murder charge, Holland
no longer faced an 'expert adversary.'" Ibid.
Consequently, Holland's Sixth Amendment right to
counsel was not denied. Id. at 246-47.
Recently, the Eleventh Circuit joined in finding that
conversations recorded by federal authorities after the
same state charges were dismissed did not violate the
defendant's Sixth Amendment rights. United States v.
Toepfer, 317 Fed. Appx. 857, 2008 U.S. App. LEXIS
14811 at *3-4 (11th Cir. 2008). Similarly, the district
court of Kansas held, "[W]here no charges have been
filed or remain pending regarding the subject of
interrogation, the Sixth Amendment right to counsel
simply does not attach, and defendant's incriminating
statements may be used against him." United States v.
Garcia, 861 F. Supp. 996, 1006 (D.Kan.1994), aff'd, 69
F.3d 549 (10th Cir.1995).
We fail to see the significance of the distinction
defendant draws in Mapp and its progeny, namely that
the questioning of the individuals [***15] in those cases
occurred in circumstances in which the [*375] right to
counsel had not yet attached. In Mapp, when the
statements were taken, the state charges against the
defendant had been dismissed, and no federal charges
had been filed. Here, when defendant's statements were
taken, the state charges had been dismissed, and there
had been no re-indictment by the State. If plaintiff is
placing significance on the duality of state-federal
prosecutions, he fails to explain the difference, or why it
should matter. The fact remains that when defendant was
in jail in Florida on unrelated charges, no charges were
pending against him for the Fowler murder.
Other courts have addressed similar issues where
there was no federal/state distinction. In United States v.
Bartelho, 129 F.3d 663, 675 (1st Cir.1997), cert. denied,
525 U.S. 905, 119 S. Ct. 241, 142 L. Ed. 2d 198 (1998),
the defendant was charged with robbery in July 1994,
and the charges were dropped in October 1994. In March
1995, while the defendant was incarcerated on other
charges, he made statements to a fellow inmate, who was
a government informant. Id. at 674-75. The defendant
was re-indicted on the same charges in May 1995. Id. at
675.
[***16] The defendant maintained that the
government deliberately dismissed the robbery charges
against him before he was incarcerated with the
informant, thus orchestrating an opportunity to obtain
information at a time when he would not have a right to
counsel. Ibid. The court stated that "[d]eliberate
chicanery by the government intended to subvert an
accused's Sixth Amendment rights, by delaying formal
charges, may give rise to a right to counsel before
charges are brought." Ibid. However, because the trial
judge found no manipulation, the court held that the
defendant's Sixth Amendment rights were not violated.
Ibid.
In Lindsey v. United States, 911 A.2d 824, 827
(D.C.2006), cert. denied, 128 S. Ct. 804, 169 L. Ed. 2d
607 (2007), the defendant was charged with murder in
1992, but, after several months, the government
dismissed the charges against him. In 1994, he was
incarcerated on drug charges. Ibid. In 1997, while the
defendant was still in prison, federal agents [**924]
visited him and [*376] told him that they had new
evidence relating to the murder and that they believed he
was involved. Id. at 828. The defendant confessed, and
several months later he was arrested and indicted for the
murder. Ibid. [***17] He claimed, on appeal, that his
Sixth Amendment right to counsel had been violated, but
the court disagreed because judicial proceedings were not
pending against him when he was questioned. Id. at 834.
The court disagreed with the defendant's contention that
his Sixth Amendment right to counsel survived the
dismissal of a previous prosecution and held that it must
be reasserted "in the absence of bad faith by the
government." Id. at 834, 836.
In a case most similar to the present matter, the
defendant in State v. Perry, 204 W. Va. 625, 515 S.E.2d
582, 584 (1999), was charged with arson. After the
preliminary hearing, the magistrate dismissed the case for
lack of sufficient evidence to support the charges. Ibid.
The State maintained that after the charges were
77
dismissed, the investigation remained open, but was not
actively pursued. Ibid. Two years later, authorities
obtained a confession from a co-conspirator, who agreed
to wear a wire while speaking to the defendant. Ibid. The
defendant made incriminating statements, and he was
charged with the same offenses that previously had been
dismissed. Ibid. The defendant argued that his right to
counsel attached in 1995, when he had first been
charged. [***18] Ibid. The court disagreed, holding that
unless a criminal defendant can show
that the government has obtained a
dismissal of adversarial judicial criminal
proceedings against him or her in order to
circumvent his or her constitutional rights,
once such criminal proceedings have been
dismissed, the right to the assistance of
counsel granted by the Sixth Amendment
... no longer applies.
[Id. at 592.]
The dismissal of an indictment without prejudice
cannot be considered a "mere formality" and is not
without significance, as defendant posits in seeking to
extend his right to counsel permanently, beyond its
expiration. On the contrary, "[t]he return of an indictment
transforms the relationship between the State and the
defendant." Sanchez, supra, 129 N.J. at 276, 609 A.2d
400. In [*377] State v. Tucker, 265 N.J. Super. 296,
319, 626 A.2d 1105 (App.Div.1993), aff'd, 137 N.J. 259,
645 A.2d 111 (1994), cert. denied, 513 U.S. 1090, 115 S.
Ct. 751, 130 L. Ed. 2d 651 (1995), we held that the Sixth
Amendment right to counsel attached only "at or after the
time that adversary judicial proceedings have been
initiated against the defendant." Citing Kirby, supra, 406
U.S. at 689, 92 S. Ct. at 1882, 32 L. Ed. 2d at 417, in
defining the initiation [***19] of adversary judicial
proceedings as one initiated by "formal charge,
preliminary hearing, indictment, information or
arraignment[,]" Tucker, supra, 265 N.J. Super. at 320,
626 A.2d 1105, we determined that the right to counsel in
New Jersey is triggered by the return of the indictment.
Id. at 325, 626 A.2d 1105. We also held that the Sixth
Amendment right "cannot be invoked once for all future
prosecutions." Id. at 322, 626 A.2d 1105 (quoting McNeil
v. Wisconsin, 501 U.S. 171, 175, 111 S. Ct. 2204, 2207,
115 L. Ed. 2d 158, 166 (1991)); see also State v. Harris,
181 N.J. 391, 435, 859 A.2d 364 (2004), cert. denied sub
nom. Harris v. New Jersey, 545 U.S. 1145, 125 S. Ct.
2973, 162 L. Ed. 2d 898 (2005).
Here, the dismissal of defendant's murder indictment
without prejudice, after successive mistrials and without
any prospects of developing additional evidence, was
entirely proper. [**925] State v. Abbati, 99 N.J. 418,
437, 493 A.2d 513
(1985). Unforeseen and
unexpectedly, that additional evidence surfaced four
years later in the fortuitous circumstance of defendant
being confined with and befriending a confidential
informant in a Florida county jail. No indictment was
pending at the time the informant was wired, and there is
no evidence that law enforcement authorities [***20]
orchestrated the circumstances, colluded with each other,
or engaged in chicanery to circumvent defendant's Sixth
Amendment rights. Nor is the evidence suspecible of any
suggestion that the State engineered the dismissal of the
original indictment to allow its investigation to continue
while defendant was not represented. Absent such proof,
we conclude that there was no right to counsel once
defendant's murder indictment was dismissed, and his
surreptitiously recorded statements thereafter were
properly admitted in his 2004 trial on the newly indicted
murder charge.
[*378] (II)
Defendant next contends that the admission of the
State expert's behavioral assessment testimony was error.
We agree, but find it harmless under the circumstances.
In its in limine motion, the State proffered the
testimony of special FBI agent Mark Safarik, who
conducted a crime scene analysis from a behavioral
perspective and deduced therefrom the dynamics
between the victim, the offender and the location of the
incident. Following a N.J.R.E. 104 hearing, the trial
judge excluded the evidence under N.J.R.E. 702 as
lacking in scientific reliability. On the State's motion for
reconsideration, the judge heard additional testimony
[***21] from Safarik, explaining, among other things,
that crime scene analysis was generally accepted in the
law enforcement and forensic communities. The judge
then ruled that Safarik could testify about the
characteristics of the victim and the crime scene, but not
the offender.
Accordingly, Safarik testified before the jury that the
lack of defensive wounds on the victim indicated that she
was not aware of the threat the offender posed. In the
same vein, the expert concluded that Fowler probably
was in the basement voluntarily given that entry into the
house required passing through a very small gate,
walking the length of a long pathway, and then entering a
door at the end of that pathway. Fowler had no broken
fingernails or debris under her fingernails, both signs that
would indicate an effort to grab an object to avoid being
taken someplace or an effort to defend herself.
Some of the expert's other opinions, however, went
beyond the parameters permitted. For instance, Safarik
said the evidence showed neither sex nor money to be a
reason for the killing, which he opined was motivated
instead by "an interpersonal aggression," and committed
78
in a manner consistent with overkill. Safarik then
[***22] explained why he thought that Fowler was
manually strangled. In Safarik's view, whoever killed
Fowler was very angry, because her killer struck her
many more times with a blunt object than was necessary
to kill her. Finally, the expert observed [*379] that a
"weapon of opportunity" is one that "would be
immediately accessible to the offender from the--his
immediate vicinity or on his person."
Quite apart from the fact that a portion of the
expert's testimony transgressed the permitted boundaries,
none of it should have been admitted. Under N.J.R.E.
702, for expert proof to be admitted: 1) the intended
testimony must concern a subject matter that is beyond
the ken of the average juror; 2) the field [**926] testified
to must be at a state of the art such that an expert's
testimony could be sufficiently reliable; and 3) the
witness must have sufficient expertise to offer the
intended testimony. Hisenaj v. Kuehner, 194 N.J. 6, 15,
942 A.2d 769 (2008); State v. Kelly, 97 N.J. 178, 208,
478 A.2d 364 (1984). Under the second prong, behavioral
science "should be evaluated under the test for admission
of scientific evidence[,]" State v. Fortin, 162 N.J. 517,
525, 745 A.2d 509 (2000), namely, whether the technique
or mode of analysis has sufficient [***23] scientific
basis to produce uniform and reasonably reliable results
and will contribute materially to the ascertainment of the
truth. State v. Cary, 49 N.J. 343, 352, 230 A.2d 384
(1967). Reliability of scientific evidence, in turn, may be
demonstrated in a number of ways: 1) expert testimony
as to the general acceptance of those in the profession of
the premises on which the proffered expert based his or
her analysis; 2) by authoritative scientific and legal
writings indicating that the scientific community accepts
the premises underlying the proffered testimony; and 3)
by judicial opinions that indicate the expert's premises
have gained general acceptance. Kelly, supra, 97 N.J. at
210, 478 A.2d 364. As to the latter, no New Jersey case
has ruled on the reliability of crime scene or behavioral
analysis.
The present matter affords no better an opportunity
for resolution of the issue. Simply stated, the record is far
too sparse and undeveloped 3 to permit an informed de
novo review, State v. [*380] Harvey, 151 N.J. 117, 16667, 699 A.2d 596 (1997), cert. denied, 528 U.S. 1085,
120 S. Ct. 811, 145 L. Ed. 2d 683 (2000); cf. Hisenaj,
supra, 194 N.J. at 12-13, 942 A.2d 769, of whether the
field of behavioral assessment and crime scene analysis
is at [***24] a state of the art such that Safarik's
testimony may be considered sufficiently reliable.
Suffice it to say, the State has not borne its burden of
demonstrating the scientific reliability of its expert proof.
See Hisenaj, supra, 194 N.J. at 15, 942 A.2d 769.
3
Although it is clear that the State submitted
articles and case law to the trial court, none of the
articles were submitted on appeal, and the
references to the case law in the trial transcripts
are fleeting.
There is yet another reason why Safarik's testimony
was inadmissible. It fails to meet the threshold
requirement under N.J.R.E. 702 that it be beyond the ken
of the average juror, a finding the trial judge made with
no analysis. On this score, the "opinion of a dulyqualified expert may be presented to a jury if it will
genuinely assist the jury in comprehending the evidence
and determining issues of fact[,]" State v. Odom, 116 N.J.
65, 70, 560 A.2d 1198 (1989), as where "it relate[s] to a
relevant subject that is beyond the understanding of the
average person of ordinary experience, education, and
knowledge." Id. at 71, 560 A.2d 1198. "If the expert's
testimony on such a subject would help the jury
understand the evidence presented and determine the
facts, it may be [***25] used as evidence." Ibid.
Here, Safarik was not testifying as to a subject
matter peculiarly within his expertise or knowledge and
unrecognizable or unfamiliar to the layperson, as, for
instance, practices in an unknown sub-culture, such as
the drug or gang subculture. See State v. Nesbitt, 185 N.J.
504, 515, 888 A.2d 472 (2006) ("We do not presume that
ordinary members of the public ... are versed in the many
ways in which a seller of crack cocaine can act in concert
with others in the business of distributing drugs on the
street"); State v. Torres, 183 N.J. 554, 579, 874 A.2d
1084 (2005) (finding that the organization and structure
of gangs is a proper topic for expert testimony). [**927]
Quite the contrary, Safarik was simply testifying about
logical conclusions the ordinary juror could draw from
human behavior. For instance, his opinion that the victim
knew her attacker and freely accompanied him to the
abandoned house [*381] amounts to no more than
common sense, since a jury could easily infer that one
does not usually enter an abandoned building with a
stranger unless it is against her will. Similarly obvious is
that strangulation coupled with multiple blows to the face
with a hammer demonstrates "overkill" committed by
[***26] an extremely angry perpetrator. These, and
others, were all logical inferences the average juror could
draw from the facts of record without the need for expert
guidance by one knowledgeable of, or experienced in,
behavioral assessment.
That said, we are satisfied the admission of such
evidence was harmless error. State v. Macon, 57 N.J.
325, 337-38, 273 A.2d 1 (1971). In the first place, the
matters addressed by Safarik were supported by other
competent evidence and witnesses. The county medical
examiner testified that Fowler was manually strangled;
that Fowler was hit repeatedly with a blunt object; and
that Fowler had no defensive wounds. Other witnesses
saw defendant in the company of Fowler only hours
79
before the murder; one witness saw defendant bring a
mattress into the Townsend Street house; another witness
testified that defendant, only a short time before the
murder, provided the address of an abandoned house on
Townsend Street as his address; and various witnesses
had observed defendant with a hammer similar to the one
likely used in the murder.
In any event, none of Safarik's expert testimony
opined on the ultimate question of defendant's guilt, see
State v. Baskerville, 324 N.J. Super. 245, 246-47, 735
A.2d 39 (App.Div.1999), [***27] certif. denied, 163 N.J.
10, 746 A.2d 456 (2000), or really actually mattered,
given the "ample independent testimony" that defendant
killed Fowler. State v. Singleton, 326 N.J. Super. 351,
354, 741 A.2d 168 (App.Div.1999). As noted, defendant
was tried twice previously without conviction. The
obvious difference in the third trial was Dominguez, to
whom defendant confessed. Given the logistics and the
language barrier of the non-English speaking Cuban
exile, Dominguez' testimony was reliable, because he
could only have known of the details through defendant.
Coupled with the other witnesses' [*382] testimony,
there was ample evidence to convict defendant. Under
the circumstances, we harbor no reasonable doubt that
Safarik's testimony contributed to the verdict, Macon,
supra, 57 N.J. at 337-38, 273 A.2d 1, and, consequently,
find the admission of Safarik's testimony harmless error.
(III)
Defendant's remaining issues are without merit and
deserve only brief mention. Contrary to defendant's
contention, Kushner, the lead investigator in the case, did
not impermissibly testify as to defendant's guilt or
credibility. He simply responded to defense counsel's
challenge that the State ignored other viable suspects and
focused narrowly on [***28] the wrong man, his client.
In explaining why defendant was pursued as the "main
suspect," Kushner said defendant lied to investigators, at
first denying knowing Fowler or having been in Lyles'
house, but then admitting these facts. Nowhere, however,
did Kushner opine as to defendant's guilt or even his
general credibility. See State v. Frisby, 174 N.J. 583,
594-95, 811 A.2d 414 (2002). Indeed, the witness simply
invoked the evidence of defendant's inconsistencies and
implausibilities to explain why he was singled out
amongst the others [**928] as the prime suspect.
Considering the defense's open invitation, see State v.
Corsaro, 107 N.J. 339, 345, 526 A.2d 1046 (1987), we
discern no error, much less plain error. State v. Hock, 54
N.J. 526, 257 A.2d 699 (1969), cert. denied sub nom.
Hock v. New Jersey, 399 U.S. 930, 90 S. Ct. 2254, 26 L.
Ed. 2d 797 (1970).
Lastly, defendant points to several comments in the
prosecutor's opening and closing statements that were
improper. In our view, none of them deprived defendant
of a fair trial.
Defendant first complains that the prosecutor twice
asked for justice by rendering a guilty verdict, implying
that defendant caused the nine-year delay and that only a
conviction will serve justice. We disagree. [***29] No
fair reading of the challenged remarks can be deemed to
have blamed defendant for the delay. Moreover, the
prosecutor asked for "justice [in the form of a conviction]
[*383] based on the evidence." We perceive nothing
improper in equating "justice" with a verdict based on the
record evidence.
Defendant next takes issue with the prosecutor's
warning the jury about the State's imperfect proofs and
argues that such a remark impermissibly bolsters the
credibility of the State's witnesses. Again, we disagree.
The prosecutor neither vouched for the credibility of his
witnesses nor referred to evidence outside the record.
Rather, he simply telegraphed discrepancies or
inconsistencies in the various witnesses' accounts due to
blurred memories over time, and to weaknesses in his
case involving witnesses with criminal convictions or
motives to implicate the defendant. There is nothing
improper in doing so.
Defendant's final complaint is that the prosecutor
willfully distorted the evidence, noting that Fowler's son
Quadir had seen Fowler and defendant together 20, 30 or
40 times, when, in fact, Quadir testified that he saw them
together only twice. We do not perceive this
misstatement, however, to [***30] be so egregious as to
have deprived defendant of a fair trial. The salient point
was whether defendant knew the victim and, thus, most
likely willingly entered the home with him. Quadir did
testify that he had seen his mother in defendant's
company, albeit only twice. Wilson and Lyles testified
that Fowler had spent several hours in defendant's
company the day before she was killed. Further,
Rodriguez testified that he saw the victim on the night
she was killed in the company of defendant, whom he
knew. Warren testified that he was "pretty sure" that it
was defendant he saw with the victim under the railroad
bridge on the day the victim was killed. Other witnesses
testified that, on Friday, they saw defendant enter the
home with a black woman. Thus, there was ample
evidence that the victim was acquainted with defendant.
Furthermore, the judge clearly and expressly instructed
the jury that it is their recollection of the facts that
controls and that counsel's comments are not evidence.
We presume, of course, that the jury faithfully [*384]
followed the court's instructions. State v. Manley, 54 N.J.
259, 271, 255 A.2d 193 (1969).
Affirmed.
80
RPC 4.3. Dealing with unrepresented person; employee of organization
In dealing on behalf of a client with a person who is not represented by counsel, a
lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or
reasonably should know that the unrepresented person misunderstands the lawyer's role in
the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. If the
person is a director, officer, employee, member, shareholder or other constituent of an
organization concerned with the subject of the lawyer's representation but not a person
defined by RPC 1.13(a), the lawyer shall also ascertain by reasonable diligence whether the
person is actually represented by the organization's attorney pursuant to RPC 1.13(e) or who
has a right to such representation on request, and, if the person is not so represented or
entitled to representation, the lawyer shall make known to the person that insofar as the
lawyer understands, the person is not being represented by the organization's attorney.
HISTORY: Adopted September 10, 1984, to be effective immediately; amended June 28, 1996, to be
effective September 1, 1996.
81
RPC 1.13. Organization as the client
(a) A lawyer employed or retained to represent an organization represents the organization as
distinct from its directors, officers, employees, members, shareholders or other constituents. For the
purposes of RPC 4.2 and 4.3, however, the organization's lawyer shall be deemed to represent not
only the organizational entity but also the members of its litigation control group. Members of the
litigation control group shall be deemed to include current agents and employees responsible for, or
significantly involved in, the determination of the organization's legal position in the matter whether
or not in litigation, provided, however, that "significant involvement" requires involvement greater,
and other than, the supplying of factual information or data respecting the matter. Former agents
and employees who were members of the litigation control group shall presumptively be deemed to
be represented in the matter by the organization's lawyer but may at any time disavow said
representation.
(b) If a lawyer for an organization knows that an officer, employee or other person associated
with the organization is engaged in action, intends to act or refuses to act in a matter related to the
representation that is a violation of a legal obligation to the organization, or a violation of law
which reasonably might be imputed to the organization, and is likely to result in substantial injury
to the organization, the lawyer shall proceed as is reasonably necessary in the best interest of the
organization. In determining how to proceed, the lawyer shall give due consideration to the
seriousness of the violation and its consequences, the scope and nature of the lawyer's
representation, the responsibility in the organization and the apparent motivation of the person
involved, the policies of the organization concerning such matters and any other relevant
considerations. Any measures taken shall be designed to minimize disruption of the organization
and the risk of revealing information relating to the representation to persons outside the
organization. Such measures may include among others:
(1) asking reconsideration of the matter;
(2) advising that a separate legal opinion on the matter be sought for presentation to
appropriate authority in the organization; and
(3) referring the matter to higher authority in the organization, including, if warranted by the
seriousness of the matter, referral to the highest authority that can act in behalf of the organization
as determined by applicable law.
(c) When the organization's highest authority insists upon action, or refuses to take action, that
is clearly a violation of a legal obligation to the organization, or a violation of law which reasonably
might be imputed to the organization, and is likely to result in substantial injury to the organization,
the lawyer may take further remedial action that the lawyer reasonably believes to be in the best
interest of the organization. Such action may include revealing information otherwise protected by
RPC 1.6 only if the lawyer reasonably believes that:
(1) the highest authority in the organization has acted to further the personal or financial
interests of members of that authority which are in conflict with the interests of the organization;
and
(2) revealing the information is necessary in the best interest of the organization.
82
(d) In dealing with an organization's directors, officers, employees, members, shareholders or
other constituents, a lawyer shall explain the identity of the client when the lawyer believes that
such explanation is necessary to avoid misunderstanding on their part.
(e) A lawyer representing an organization may also represent any of its directors, officers,
employees, members, shareholders or other constituents, subject to the provisions of RPC 1.7. If the
organization's consent to the dual representation is required by RPC 1.7, the consent shall be given
by an appropriate official of the organization other than the individual who is to be represented or
by the shareholders.
(f) For purposes of this rule "organization" includes any corporation, partnership, association,
joint stock company, union, trust, pension fund, unincorporated association, proprietorship or other
business entity, state or local government or political subdivision thereof, or non-profit
organization.
HISTORY: Adopted September 10, 1984, to be effective immediately; amended June 28, 1996, to be
effective September 1, 1996.
83
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT v. CIBA-GEIGY CORPORATION, DEFENDANTAPPELLANT
No. A-2289-90T1F
Superior Court of New Jersey, Appellate Division
247 N.J. Super. 314; 589 A.2d 180; 1991 N.J. Super. LEXIS 118
January 16, 1991, Argued
April 10, 1991, Decided
SUBSEQUENT HISTORY:
[***1] Approved for
Publication April 23, 1991. As Corrected April 24, 1991.
Appeal granted by State v. Ciba-Geigy Corp., 126 N.J.
338, 598 A.2d 895, 1991 N.J. LEXIS 694 (1991)
Appeal dismissed by State v. Ciba-Geigy Corp., 130 N.J.
585, 617 A.2d 1213, 1992 N.J. LEXIS 1285 (1992)
PRIOR HISTORY:
On appeal from the Superior
Court, Law Division, Mercer County.
COUNSEL: Frederick A.O. Schwarz, Jr., pro hac vice,
Cravath, Swaine & Moore, argued the cause for
appellant (Lowenstein, Sandler, Kohl, Fisher & Boylan,
attorneys).
Mark Paul Cronin, Deputy Attorney General, argued the
cause for respondent (Robert J. Del Tufo, Attorney
General of New Jersey, attorney).
JUDGES: LONG, R.S. COHEN and STERN.
OPINION BY: STERN
OPINION
[*316]
[**180] Our Rules of Professional
Conduct, RPC 4.2 Communication with Person
Represented by Counsel, provides:
In representing a client, a lawyer shall
not communicate about the subject of the
representation with a party the lawyer
knows to be represented by another
lawyer in the matter, unless the lawyer has
the consent of the other lawyer or is
authorized by law to do so.
Based on this rule, defendant CIBA-GEIGY moved for a
protective order prohibiting the State from initiating ex
parte communications with defendant's employees. An
indictment against defendant is now pending trial.
seeks an order only with respect to "interrogation of
CIBA-GEIGY employees whose acts or omissions the
State sought to impute to CIBA-GEIGY for the purpose
of establishing corporate criminal liability". The trial
judge denied the motion concluding that the rule did not
prohibit the Attorney General from conducting ex parte
interviews of current or former employees of a corporate
defendant, even though that corporation is represented by
counsel.
The court expressly ruled that those
communications could include employees whose acts or
omissions the State sought to impute to the defendant.
We granted leave to appeal and accelerated oral
argument.
I.
CIBA-GEIGY does not contest the general
proposition under existing New Jersey law that evidence
obtained in violation of a disciplinary rule need not be
suppressed. See State v. Riley, 216 N.J.Super. 383, 390,
523 A.2d 1089 (App.Div.1987); State v. Darby, 211
N.J.Super. 367, 376, 511 A.2d 1222 (App.Div.1986),
[*317] certif. denied 105 N.J. 559, 523 A.2d 192 (1986);
1
State v. Porter, 210 N.J.Super. 383, 393-94, 510 A.2d
49 (App.Div.1986), [***3] certif. denied 105 N.J. 556,
523 A.2d 191 (1986). Therefore, we question whether
there is an issue for appropriate consideration in the
criminal, as opposed to some future disciplinary,
proceedings. 2 However, the State does not raise this
procedural defense; it seeks to avoid any disciplinary
wrongdoing, and defendant seeks to protect its interests.
Further, no published opinion appears to decline
consideration of the issue based on appropriate forum,
the trial court ruled upon the merits of defendant's
application in this case, and the parties are entitled to
know their rights and responsibilities with respect to the
immediate concern.
The Advisory Committee on
Professional Ethics would probably be required to
decline consideration of the issue because it involves "a
pending action where its opinion might affect the
interests of the parties. . . ." R. 1:19-2. Accordingly,
there is a real dispute between the parties affecting a
pending case, and we consider the issues raised.
[**181] Before us, defendant argues [***2] that it
84
1
As stated by Judge Greenberg in Darby,
supra, ". . . it does not follow that if a prosecutor
violates an ethical rule in gathering evidence he
necessarily violates a defendant's Sixth
Amendment rights so that the evidence obtained
is inadmissible. We do not see why ethical rules
must be incorporated into the Sixth Amendment.
Further, we point out that evidence given in
violation of applicable disciplinary rules may be
admissible." 211 N.J.Super. at 376, 511 A.2d
1222.
[***4]
2 Defendant makes an argument under the Sixth
Amendment to the United States Constitution and
N.J. Const. (1947), Art. I, par. 10, but contends
that RPC 4.2 "is broader than the underlying
constitutional guaranties."
II.
There is no doubt that RPC 4.2 applies to
corporations. Nor is it limited to civil proceedings. 3 The
real issue before us, [*318] therefore, is whether any
employees, and if so which employees, are "parties" for
purposes of the rule.
3
As will be developed hereafter, the
commentary to the Model Rule expressly refers to
imputation of criminal as well as civil liability.
Defendant essentially urges that the State wants to
speak with employees who would not be "interviewed as
witnesses but as corporate employees whose acts the
State is trying inappropriately to impute to the
corporation." According to the defendant, it "does not
wish to 'restrict the flow of information' available to the
State, and [it] [***5] is willing to make available to the
State any of its present or former employees who wish to
be interviewed." In fact, a party cannot generally ask a
witness "to refrain from voluntarily giving relevant
information to another party," RPC 3.4(f). All that
defendant requests (in addition to the witnesses' "right to
accept or refuse to be interviewed", a right which is
acknowledged by the State, see State v. Roszkowski, 129
N.J.Super. 315, 317-318, 323 A.2d 531 (App.Div.1974),
certif. denied 66 N.J. 325, 331 A.2d 25 (1974); State v.
Boiardo, 172 N.J.Super. 528, 412 A.2d 1084 (Law
Div.1980); United States v. Addonizio, 313 F.Supp. 486,
491 (D.N.J.1970), aff'd U.S. v. Addonizio, 451 F.2d 49
(3d Cir.N.J.1971), cert. denied 405 U.S. 936, 92 S.Ct.
949, 30 L.Ed.2d 812 (1972)), is the right of defendant's
counsel to be present at all such interviews. In
defendant's words,
[**182] [t]his procedure will strike the
proper balance between protecting the
corporation's [***6]
interests and
allowing the State to conduct additional
post indictment interviews. In thus
promoting the interests of fairness, this
procedure will not impose any unfair
burden upon the State -- it will be able to
interview any CIBA-GEIGY employees
who wish to be interviewed. This
procedure also complies with the ethical
rules while the State's insistence on ex
parte procedures does not.
Our rule was patterned after the model A.B.A. rule,
see American Bar Association Model Rules of
Professional Conduct, and the commentary thereto notes
that the rule prohibits ex parte contact "with persons
having a managerial responsibility on behalf of the
organization, and with any other person, whose act or
omission in connection with that matter may be imputed
to the organization for purposes of civil or criminal
liability, or whose statement may constitute an admission
on [*319] the part of the organization." See, e.g., Public
Service Electric & Gas Company v. Associated Electric
& Gas Ins. Services, Ltd., 745 F.Supp. 1037, 1039-1042
(D.N.J.1990) (quoting commentary).
While the
commentary is supportive of defendant's position, RPC
4.2 does not expressly [***7] distinguish between
certain types or levels of officers or employees and
others employed by a corporation. 4
4
In adopting the New Jersey Rules of
Professional Conduct, our Supreme Court did not
adopt the A.B.A. commentary and, therefore, it
should not be "considered as a formal part of the
rules." The "introduction" to our Rules notes,
however, that "reference should be made to the
official ABA Comments" "[f]or assistance in
interpreting these rules." See PRESSLER, Current
N.J. COURT RULES, (Gann 1991), Introduction
to Rules of Professional Conduct at 286.
The defendant also relies upon Upjohn Co. v. United
States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584
(1981). However, that case is distinguishable because it
concerns the attorneyclient privilege which was held
applicable to communications of employees of a
corporate party at all levels. 5 This case does not concern
communications between a corporate employee and the
corporation's counsel but [***8] with communications
between a prosecutor, or attorney for the corporation's
adversary, and a corporate employee who may or may
not have previously communicated with counsel.
5
The decision does not appear to rest on
85
constitutional grounds, but it is clear that New
Jersey enjoys an attorney-client privilege. See
e.g. Matter of Nackson, 114 N.J. 527, 531-532,
555 A.2d 1101 (1989).
There is a distinction between the attorney-client
privilege discussed in Upjohn, supra, and the protection
afforded by RPC 4.2. See Wright by Wright v. Group
Health Hospital, 103 Wash.2d 192, 691 P.2d 564 (1984).
The Upjohn court expanded the definition of "client" for
the purposes of the attorney-client privilege, but "[t]he
purpose of the disciplinary rule, on the other hand, is to
protect the corporation so its agents who have the
authority to prejudice the entity's interest are not
unethically influenced by [***9] adverse counsel." Id.
691 [*320] P.2d at 570. Thus, Upjohn deals with the
policy objections with respect to communications
between a corporate employee and its counsel, a subject
having little relationship with the purposes of the
disciplinary rule:
First, the privilege applies only to
confidential communications with counsel
. . ., it does not immunize the underlying
factual information -- which is in issue
here -- from disclosure to an adversary. . .
. Second, the attorney-client privilege
serves the societal objective of
encouraging open communication
between client and counsel . . ., a benefit
not present in denying informal access to
factual information. Thus, a corporate
employee who may be a 'client' for
purposes of the attorney-client privilege is
not necessarily a 'party' for the purposes
of DR 7-104(A)(1) [the disciplinary rule].
Niesig v. Team I, 76 N.Y.2d 363, 371-372,
559 N.Y.S.2nd 493, 497 [558 N.E.2d
1030] (N.Y.1990) (emphasis in original).
See also Stempler v. Speidell, 100 N.J. 368, 495 A.2d 857
(1985) (defendant [***10] could interview decedent's
treating physician and [**183] plaintiff could be
required to authorize same). 6
6
Stempler v. Speidell did not involve a
corporate employee.
Defendant acknowledges the right of the State to
interview witnesses and to subpoena witnesses before the
grand jury. It apparently acknowledges that employees
can be called to testify before the grand jury, subject of
course to their Fifth Amendment rights, although not
before a prosecutor. See e.g. In re Addonizio, 53 N.J.
107, 116, 248 A.2d 531 (1968); State v. Hilltop Private
Nursing Home, Inc., 177 N.J.Super. 377, 426 A.2d 1041
(App.Div.1981); see also Matter of Nackson, 221
N.J.Super. 187, 205, 534 A.2d 65 (App.Div.1987), aff'd
114 N.J. 527, 555 A.2d 1101 (1989). In distinguishing
between pre-indictment and post-indictment situations,
the defendant appears to acknowledge that the [***11]
right to counsel attaches only after formal legal or
adversarial proceedings are commenced, see
e.g.
Patterson v. Illinois, 487 U.S. 285, 108 S.Ct. 2389, 101
L.Ed.2d 261 (1988); Michigan v. Jackson, 475 U.S. 625,
106 S.Ct. 1404, 89 L.Ed.2d 631 (1986); Maine v.
Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481
(1985); Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54
L.Ed.2d 424 (1977); Kirby v. Illinois, 406 U.S. 682, 92
S.Ct. 1877, 32 L.Ed.2d 411 (1972); Massiah v. [*321]
United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d
246 (1964); State v. Earle, 60 N.J. 550, 552, 292 A.2d 2
(1972); State v. Darby, supra, 211 N.J.Super. at 372-376,
511 A.2d 1222. 7 See also R. 3:16; R. 7:4-4(a). At that
time, the defendant becomes a "party." As noted in
United States v. Ryans, 903 F.2d 731, 740-741 (10th
Cir.1990), [***12]
the commencement of formal
proceedings and the shift "from the investigation to
accusation" also shifts "the balance of interests at stake",
thereby affecting the right to ex parte interviews once
"adversary proceedings [have] begun."
7 See also Brewer v. Williams, 430 U.S. 387, 97
S.Ct. 1232, 51 L.Ed.2d 424 (1977) (statements
from accused outside the presence of counsel not
admissible), reh'g denied 431 U.S. 925, 97 S.Ct.
2200, 53 L.Ed.2d 240 (1977); State v. Clausell,
121 N.J. 298, 580 A.2d 221 (1990). Once the
adversarial criminal process has begun the State
may not take a statement from a defendant in the
absence of counsel or a waiver. State v. Hartley,
103 N.J. 252, 284-286, 511 A.2d 80 (1986). State
v. Kennedy, 97 N.J. 278, 478 A.2d 723 (1984).
The cases dealing with waiver after assignment of
counsel do not definitively consider RPC 4.2 or
RPC 4.3. See State v. Porter, supra. But see State
v. Darby, supra; RPC 3.8.
[***13] As noted in a recent comment, Krulewitch,
"Ex Parte Communications with Corporate Parties: The
Scope of the Limitations on Attorney Communications
with One of Adverse Interest," 82 Northwestern Law
Rev. 1274, 1275 (1988), under the prior disciplinary rule,
DR 7-104(A)(1), the forerunner of RPC 4.2 (which
contains substantially the same language):
An attorney cannot communicate with
the individual who is the opposing party.
If the case involves several different
86
parties that are all individuals, . . . the
application of the rule is sufficiently clear.
When a corporation is a party to a suit,
however, the term 'party' suddenly
becomes ambiguous. The rule fails to
define the term 'party' when applied to a
corporate entity. Since a corporation is an
artificial entity, it is often impossible to
point to any one person or thing that
represents the corporation. When the
corporation becomes involved in a law
suit, the corporate entity is the party, not
the employees or the agents.
The
fundamental conundrum is this: if the
corporation is a faceless entity run by
agents and employees, and yet the agents
and employees are not the corporation,
then who or what is a 'party' [***14]
under DR 7-104(A)(1)?
[footnotes
omitted].
[*322] There are a number of reasons for
suggesting that the word "party" cannot include any
employee of a corporate defendant. For example, a
defendant employee of the corporate defendant could not
be represented by the corporations's attorney in the
action. See e.g., In re Garber, 95 N.J. 597, 472 A.2d 566
(1984); In re Abrams, 56 N.J. 271, 276, 266 A.2d 275
(1970); In re Russell, 59 N.J. 315, 282 A.2d 42 (1971).
This is at least true in the absence of a knowing waiver
post-indictment on the record by both parties. See R.
3:8-2; State v. Bellucci, 81 N.J. 531, 410 A.2d 666
(1980). "It is inherently wrong to represent both the
employer and the employee if the employee's interest
may, and [**184] the public interest will, be advanced
by the employee's disclosure of his employer's criminal
conduct." In re Abrams, supra, 56 N.J. at 276, 266 A.2d
275. Reading the rule to prohibit ex parte interviews
might treat the employee as [***15] if represented by
the corporation's attorney.
Further, this approach,
requiring notice to corporate counsel, would apply to
corporate officers and employees, even if independently
represented or an adverse party in the proceeding, such
as in a stockholder's or worker's compensation case.
Our judicial policy is to promote the admission of
evidence and, therefore, to construe privileges narrowly,
see State v. Briley, 53 N.J. 498, 251 A.2d 442 (1969); see
also In re Farber, 78 N.J. 259, 394 A.2d 330 (1978),
cert. denied New York Times Co. v. N.J., 439 U.S. 997,
99 S.Ct. 598, 58 L.Ed.2d 670 (1978); Kurdek v. West
Orange Educ. Bd., 222 N.J.Super. 218, 226, 536 A.2d
332 (Law Div.1987). Further, it may be difficult for the
prosecutor to tell whether a corporate employee's
statements can be imputed to the defendant before an
initial interview occurs, and there is nothing to suggest
that our disciplinary rule was designed to require ex parte
or in camera hearings to obtain judicial permission or
authorization [***16] for a pretrial interview.
Perhaps the simplest and, in many ways, the
appropriate approach would be to hold that the word
"party" means exactly [*323] what it says, the corporate
entity named as a party in the litigation. Cf. R. 4:16-1(c)
relating to representatives of a corporate "party." This
"plain language" construction is consistent with the
wording of RPC 4.2, promotes the search for truth and
avoids many of the problems caused by any other
approach.
The "plain language" construction, and the other
"bright line" extreme prohibiting all ex parte interviews
of corporate employees, produce the benefit of avoiding
the risk of a disciplinary rule violation and make it easier
for an attorney to know when an interview can be
conducted and when it cannot.
The "plain language" construction finds no support,
however, in authority and is inconsistent with the
purpose of the Rule as explained in the A.B.A.
explanatory commentary. See n. 3 supra. See also
Curley v. Cumberland Farms, Inc., 134 F.R.D. 77, 79
(D.N.J.1991).
The other "bright line" extreme, prohibiting all ex
parte interviews, has been endorsed in this federal
district by Judge Politan [***17] in Public Service
Electric & Gas Co., supra, 745 F.Supp. 1037, which
prohibited all ex parte communications with a
corporation's former employees. But, as noted in
Magistrate Simandle's subsequent opinion adopted by
Judge Brotman in Curley v. Cumberland Farms, Inc.,
134 F.R.D. 77, 86 (D.N.J.1991) the other cases which
applied that approach to former employees were
subsequently "vacated and withdrawn by the deciding
courts, and are of no precedential value." These opinions
dealing with former employees have limited value in this
context because ex-employees can rarely, if ever, make
an admission which can bind, or take action which can be
imputed to, a former principal. See Curley, 134 F.R.D. at
88-91; Amarin Plastics, Inc. v. Maryland Cup Corp., 116
F.R.D. 36 (D.Mass.1987). See also Evid.R. 63(8), 63(9).
Compare, Fed.Rules Evid. Rule 801(d)(2)(D). Moreover,
as the New York Court of Appeals recently noted in
Niesig v. Team I, 76 N.Y.2d 363, 559 N.Y.S.2d 493, 496,
n. 3, 558 N.E.2d 1030, 1033 [*324] n. 3 (N.Y.1990),
[***18] the only opinion which by then had adopted the
"blanket rule" prohibiting ex parte interviews with all
employees was "'depublished' by the California Supreme
Court and thus is without precedential significance." 8
Further, as Magistrate Simandle has noted, "[i]f the
framers of RPC 4.2 wished to ethically restrain all
contact with a corporation's employees (let alone ex-
87
employees), the rule would undoubtedly have been
fashioned differently." 134 F.R.D. at 89.
8 That opinion was not one cited by Magistrate
Simandle. Niesig was decided about two months
prior to P.S.E. & G.
In Curley, Judge Brotman adopted Magistrate
Simandle's interpretation that RPC 4.2 applied to
employees with management responsibility, or whose
"act or omission is [**185] believed to be so central and
obvious to a determination of corporate liability that the
person's conduct may be imputed to the corporation," 134
F.R.D. at 91. or whose statements may constitute
admissions against the organization [***19] which
employs them. 134 F.R.D. at 91-92.
Last year in Niesig v. Team I, supra, the New York
Court of Appeals found that the "blanket rule"
prohibition test was too extreme. As Judge Kaye stated:
The single indisputable advantage of
a blanket preclusion -- as with every
absolute rule -- is that it is clear. No
lawyer need ever risk disqualification or
discipline because of uncertainty as to
which employees are covered by the rule
and which not. The problem, however, is
that a ban of this nature exacts a high
price in terms of other values, and is
unnecessary to achieve the objectives of
DR 7-104(A)(1) [the predecessor to
R.P.C. 4.2 which contains substantially
the same language]. [559 N.Y.S.2d at 497,
558 N.E.2d at 496].
However, the Court found that the "proposed
intermediate tests . . . give too little guidance, or
otherwise seem unworkable." Id., 559 N.Y.S.2d at 498,
558 N.E.2d at 1035. For example, the "control group"
test urged by the civil defendants in that case, which
included "only the most senior management [***20]
exercising substantial control over the corporation," id. at
497, 558 N.E.2d at 1034, was found to "overlook[] the
fact that corporate employees other than senior
management also can [*325] bind the corporation." Id.
at 498, 558 N.E.2d at 1035. The Court of Appeals
therefore concluded:
The test that best balances the
competing interests, and incorporates the
most desirable elements of the other
approaches, is one that defines 'party' to
include corporate employees whose acts
or omissions in the matter under inquiry
are binding on the corporation (in effect,
the corporation's 'alter egos') or imputed to
the corporation for purposes of its
liability, or employees implementing the
advice of counsel. All other employees
may be interviewed informally.
Unlike a blanket ban or a 'control
group' test, this solution is specifically
targeted at the problem addressed by DR
7-104(A)(1).
The potential unfair
advantage of extracting concessions and
admissions from those who will bind the
corporation is negated when employees
with 'speaking authority' for the
corporation, and employees who are so
closely identified with the interests of the
corporate party as to be indistinguishable
[***21] from it, are deemed 'parties' for
purposes of DR 7-104(A)(1). Concern for
the protection of the attorney-client
privilege prompts us also to include in the
definition of 'party' the corporate
employees responsible for actually
effectuating the advice of counsel in the
matter. [Id. at 498, 558 N.E.2d at 1035].
We are not the Supreme Court which can amend or
clarify its rule, and we fully recognize that the broader
we define the word "party", the more we narrow pretrial
discovery of facts. 9 However, we know no better way
than the New York Court of Appeals to balance the
purpose of the Rule with the realities and practicalities of
conducting litigation. That balance may at first, as in
New York, be somewhat difficult to apply. It may even
deter some ex parte communications, see Niesig, supra,
559 N.Y.S.2d at 499, 558 N.E.2d at 1036. If the Rule
deters some ex parte civil discovery, there is no great
social or policy sacrifice; it will promote other types of
discovery, such as by deposition upon notice to the
adversary. In the criminal setting, it may prevent some
ability of the prosecutor to interview potential [***22]
witnesses (who are employees of a corporate defendant)
before trial, but the Rule only deals with a "party," that is
after the commencement of an adversarial proceeding.
Moreover, most criminal cases filed against a [*326]
corporation are commenced by complaint or indictment
after investigation -- corporations do not generally
commit "street crimes" -- and by then the investigation
clearly should have been developed through the
employee witnesses or otherwise. Accordingly, we find
no reason to interpret RPC 4.2 more broadly than
intended nor more narrowly than necessary to permit
proper pretrial investigation. On balance, we give the
Rule the same interpretation as rendered by the New
88
York Court of Appeals in Niesig.
9 Our Rules have express provisions relating to
depositions of corporations through designated
officers, directors or managing agents. See R.
4:14-2(c); 4:16-1(b).
Remanded for further
[***23] with this opinion.
proceedings
consistent
89
132 N.J.L.J. 573
November 2, 1992
1 N.J.L. 1705
November 2, 1992
ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
Appointed by the New Jersey Supreme Court
OPINION 668
Ex Parte Communication with Former
Employees of Corporate Defendants
We are asked whether a lawyer may ethically conduct ex parte
interviews of former employees of corporations that are adverse
parties in litigation and what limitations, if any, are imposed
upon such interviews by the Rules of Professional Conduct.
The
applicable Rules are:
RPC 4.2 Communication with Person Represented by Counsel
In representing a client, a lawyer shall not
communicate about the subject of the representation with
a party the lawyer knows to be represented by another
lawyer in the matter, unless the lawyer has the consent
of the other lawyer or is authorized by law to do so.
RPC 4.3 Dealing with Unrepresented Person
In dealing on behalf of a client with a person who
is not represented by counsel, a lawyer shall not state
or imply that the lawyer is disinterested.
When the
lawyer knows or reasonably should know that the
unrepresented person misunderstands the lawyer's role in
the matter, the lawyer shall make reasonable efforts to
correct the misunderstanding.
The inquiry may well have been prompted by uncertainty
generated by the holding of the Appellate Division in State v.
CIBA-GEIGY Corp., 247 N.J. Super 314 (1991) which dealt with ex
parte interviews of current employees of a corporate litigant.
Although it appears that the Supreme Court granted a motion for
leave to appeal from that decision, we are advised that the matter
was thereafter dismissed.
A careful review of the Appellate Division decision leads us
to conclude that its rationale applies with equal force to the
conduct of ex parte interviews of former employees of a corporate
litigant.
90
Indeed, in its analysis of the scope of protection afforded
by RPC 4.2, the Court rejected the polar extremes - the "plain
language" construction which would limit the definition of the
word "party" to the corporate entity named in the pleadings and
its antithesis - the view which would prohibit all ex parte
interviews including those of former employees, as enunciated by
Judge Politan in Public Service Electric and Gas Co. v. Associated
Electric & Gas Ins. Services, Ltd
., 745 F.Supp. 1037, 1039-42
(D.N.J. 1990).
Having rejected the "bright line" views, the Appellate
Division expressly adopted the position taken by the New York
Court of Appeals in Niesig v. Team I, 76 N.Y. 2d 363, 559 N.Y.S.
2d 493, 496, n.3, 558
N.E. 2d 1030, 1033, n.3 (1990) quoting
therefrom in haec verba:
The
single
indisputable
advantage
of
a
blanket
preclusion - as with every absolute rule - is that it is
clear. No lawyer need ever risk disqualification or
discipline because of uncertainty as to which employees
are covered by the rule and which not. The problem,
however, is that a ban of this nature exacts a high
price in terms of other values, and is unnecessary to
achieve
the
objectives
of
DR
7-104(A)(1)
[the
predecessor to RPC 4.2 which contains substantially the
same language]. [559 N.Y.S. 2d at 497, 558 N.E. 2d at
496]
* * *
The test that best balances the competing interests, and
incorporates the most desirable elements of the other
approaches, is one that defines 'party' to include
corporate employees whose acts or omissions in the
matter under inquiry are binding on the corporation (in
effect, the corporation's 'alter egos') or imputed to
the corporation for purposes of its liability, or
employees implementing the advice of counsel. All other
employees may be interviewed informally.
Unlike a blanket ban or a 'control group' test,
this solution is specifically targeted at the problem
addressed by DR 7-104(A)(1). The potential unfair
advantage of extracting concessions and admissions from
those who will bind the corporation is negated when
employees with 'speaking authority' for the corporation,
and employees who are so closely identified with the
interests
of
the
corporate
party
as
to
be
indistinguishable from it, are deemed 'parties' for
purposes of DR 7-104(A)(1). Concern for the protection
of the attorney-client privilege prompts us also to
include in the definition of 'party' the corporate
employees responsible for actually effectuating the
91
advice of counsel in the matter.
2d at 1035].
[ Id. at 498, 558 N.E.
Immediately following the foregoing excerpts from Niesig v.
Team I the Appellate Division said:
We are not the Supreme Court which can amend or clarify
its rule, and we fully recognize that the broader we
define the word "party" the more we narrow pretrial
discovery of facts. [n.9]. However, we know no better
way than the New York Court of Appeals to balance the
purpose
of
the
Rule
with
the
realities
and
practicalities of conducting litigation.
That balance
may at first, as in New York, be somewhat difficult to
apply. It may even deter some ex parte civil discovery,
there is no great social or policy sacrifice; it will
promote other types of discovery, such as by deposition
upon notice to the adversary.
n.9
Our Rules have express provisions relating to
depositions of corporations through designated officers,
directors or managing agents.
See R. 4:14-2(c); R.
4:16-1(b). [ State v. CIBA-GEIGY Corp., supra, 247 N.J.
Super at 325.
Now, all of this is strictly subject to the risk of possible
intrusion upon privileged matters, the caveat expressed in the
last sentence in the quotation from Niesig v. Team I, supra, 76
N.Y. 2d 363, 559 N.Y.S. 2d 493. The right to conduct
ex parte
interviews of former employees is not a license to penetrate
privileges. See Stempler v. Speidell 100 N.J. 368 (1985) laying
down conditions upon which a treating physician may be interviewed
(instead of being deposed).
In AAMCO Transmissions, Inc. v. Michael A. Marion, 1991 U.S.
Dist. LEXIS 13326 (E.D. Pa. 1991) the Court rejected a claim of an
RPC 4.2 violation, noting that there had been no showing as to how
counsel could have known that the person contacted would possess
information subject to the attorney-client privilege. Id. at 6.
In footnote 2, the Court observed: "Plaintiffs rely upon Oak
Industries v. Zenith Industries , 1988 WL 79614 (N.D. Ill. 1988).
In that case, the ex parte contacts at issue were with Plaintiffs'
former general counsel, an individual who clearly could be
expected to possess information subject to the attorney-client
privilege."
In short, ex parte interviews of current or former corporate
employees involve potential hazards which can often be avoided by
The risks are
agreement with counsel for the corporate party. 1
serious.
1
And always avoided by deposition.
92
The need for RPC 4.2's protection to extend to individuals
having access to litigation confidences was noted in the case of
Amarin Plastics, Inc. v. Maryland Cup Corp., 116 F.R.D. 36, 40 (D.
Mass. 1987), where the Court, discussing another case, said:
Moreover, the court stressed that even if the employee
had been considered a former employee, DR 7-104 would
still apply because he was a "former confidential
employee, a confidential consultant and a member of
MGM's litigating team for this case."
Id.
Once the
employee had resigned as vice president, he signed a
consulting agreement that required him to assist in the
litigation; he continued to work with the lawyers in
preparation
for
litigation;
and
was
privy
to
confidential information regarding the litigation. His
consulting duties included such sensitive tasks as
helping to draft interrogatories and assisting counsel
at depositions, and in fact he was listed as an expert
witness for the opposing party.
(citation omitted)
(emphasis added).
See also ABA Committee on Professional Ethics and Grievances
Formal Opinion 47 (decided under the Canons of Ethics) (attorney
ought to be disqualified where he learned the substance of
privileged communications concerning the matter through an
informal interview) and Cf. Gray v. Commercial Union Ins. Co., 191
N.J. Super 590 (App. Div. 1983) mere access to confidential
communications leads to an irrebuttable conclusion that such
secrets had been obtained, and must result in disqualification of
counsel).
Prophylaxis is always sound policy where the unrepresented
former employee is to be interviewed ex parte, and this is the
theme of RPC 4.3. We have noted the safeguards prescribed by the
Supreme Court in Stempler, supra, 100 N.J. 368, and other Courts
have been equally circumspect. In
Morrison v. Brandeis
University, 125 F.R.D. 14 (D. Mass. 1989) the Court granted a
motion for leave to interview present and former employees of the
defendant but prescribed the following guidelines:
1.
When plaintiff's counsel initially contacts any person
as to which authorization to interview has herein been
given (hereinafter, "any person"), she shall immediately
disclose her capacity as counsel for the plaintiff in
the above-styled litigation and the purpose of the
contact, i.e. to request and interview.
2.
Whether or not to grant the request for an interview is
completely up to the person, and the person's decision
shall be respected.
3.
Any request by any person that the interview take place
only in the presence of his or personal attorney and/or
the presence of Brandeis' attorney shall be honored.
93
4.
Brandeis shall advise all persons within the group which
plaintiff's counsel has herein been given authorization
to interview that they may, if they wish, agree to be
interviewed by plaintiff's counsel to discuss matters
which relate to this case and that disciplinary or other
adverse action will not be taken by Brandeis against any
person who consents to an interview.
Finally, ABA Formal Opinion 91-359 (1991) dealt with the
precise
subject
matter
and
reached
essentially
the
same
conclusions. In summary, ex parte interviews of former employees
of a litigant are not per se improper under the Rules of
Professional Conduct, but one sails rather close to the wind in
undertaking such measures.
The risks ought to be weighed
carefully before doing so.
Given the impracticality of fashioning a "bright line," these
situations do not lend themselves to empirical resolution.
Obvious questions are presented in every case.
Is (or was) the
former employee part of the corporate "litigation team" involved
in the litigation?
Was he or she privy to confidential
communications? How long ago did employment cease? Is there any
possibility that the former employee may become a party? How can
the lawyer prove compliance with RPC 4.3? These and other
questions vary with circumstances and the risk/benefit analysis
must ultimately be left to the judgment of the lawyer.
*
*
*
94
IN THE MATTER OF OPINION 668 OF THE ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
A-4/5 September Term 1993
Supreme Court of New Jersey
134 N.J. 294; 633 A.2d 959; 1993 N.J. LEXIS 1306
September 27, 1993, Argued
December 14, 1993, Decided
PRIOR HISTORY: [***1] On review of an opinion
of the Advisory Committee on Professional Ethics.
COUNSEL: Mark Paul Cronin, Deputy Attorney
General, argued the cause for appellant Attorney General
of New Jersey (Fred DeVesa, Acting Attorney General,
attorney; Mr. Cronin and Joseph L. Yannotti and Jack M.
Sabatino, Assistant Attorneys General, of counsel and on
the briefs).
Bennet D. Zurofsky argued the cause for appellants, New
Jersey Employee Lawyers Association, Peter Van
Schaick, Esquire, and Max Manshel, Esquire (Reitman
Parsonnet, attorneys).
Theodore W. Geiser argued the cause for respondent
Advisory Committee on Professional Ethics (Connell,
Foley & Geiser, attorneys).
Theodore V. Wells, Jr., argued the cause for amicus
curiae Association of Criminal Defense Lawyers of New
Jersey (Mr. Wells, attorney; Rosemary E. Ramsay, on the
brief).
Stephen D. Cuyler submitted a brief on behalf of amicus
curiae Cuyler, Burk & Matthews (Cuyler, Burk &
Matthews, attorneys; Mr. Cuyler, Richard A. Crooker,
and Maria C. Hermida, on the brief).
JUDGES: For remandment--Chief Justice WILENTZ,
and Justices CLIFFORD, HANDLER, POLLOCK,
O'HERN, GARIBALDI and STEIN. Opposed--None.
OPINION BY: PER CURIAM
OPINION
[*296] [**960] In Opinion 668, 132 N.J.L.J. 573
(1992), the Advisory Committee on Professional Ethics
(ACPE) addressed whether the rationale of State v.
CIBA-GEIGY Corp., 247 N.J.Super. 314, 589 A.2d 180
(App.Div.), appeal [***2] granted, 126 N.J. 338, 598
A.2d 895 (1991), appeal dismissed, 130 N.J. 585, 617
A.2d 1213 (1992), which dealt with ethical restraints on
ex parte interviews of current employees of a corporate
litigant, applied with equal force to the conduct of ex
parte interviews of former employees of a corporate
litigant. In its analysis of the issue, the ACPE did not
undertake its own review of the ethical principles stated
in CIBA-GEIGY. The ACPE concluded that the rationale
of CIBA-GEIGY applied with equal force to the conduct
of ex parte interviews of former employees of a
corporate litigant. We agreed to review the ACPE
Opinion under Rule 1:19-8. 133 N.J. 414, 627 A.2d
1126. Because we have reservations about the scope of
the CIBA-GEIGY decision, we have decided to reserve
decision on the underlying ethical issues until we receive
the report of a committee that will assess the concrete
effects of a rule that we might adopt rather [*297] than
decide issues in the abstract. Today we set forth interim
rules of conduct that will provide guidance to the bench
and bar pending our final resolution of the issues. The
committee should not consider those rules as binding
[***3] on it; its recommendations should be independent
of them except for such weight as the committee
concludes their merits deserve.
I
This review primarily concerns the application of
Rule of Professional Conduct (RPC) 4.2 to corporations.
That ethics rule restrains a lawyer for one party from
speaking [**961] directly to another party who is
represented by counsel. RPC 4.2 provides:
In representing a client, a lawyer shall
not communicate about the subject of the
representation with a party the lawyer
knows to be represented by another
lawyer in the matter, unless the lawyer has
the consent of the other lawyer or is
authorized by law to do so.
That rule is easily understood and readily applicable in
the familiar context of a suit between two represented
individuals, such as buyer and seller of real estate or
husband and wife in a divorce matter. An attorney for
the buyer simply may not communicate with the seller
without the consent of the seller's attorney. But when the
95
other party to a suit is a corporation, application of the
rule becomes murky. Because a corporation cannot
speak except through natural persons, the question is
which persons associated with the corporation might
[***4] be considered parties for the purposes of the rule.
The American Bar Association's (ABA) current
commentary to RPC 4.2 would seemingly give the
restraint on direct communication a broad sweep. The
commentary states:
In the case of an organization, [RPC
4.2] prohibits communications by a
lawyer for one party concerning the
matter in representation with [(a)] persons
having a managerial responsibility on
behalf of the organization, and with [(b)]
any other person whose act or omission in
connection with that matter may be
imputed to the organization for purposes
of civil or criminal liability or [(c)] whose
statement may constitute an admission on
the part of the organization.
[*298] [Lawyers' Manual on Professional Conduct
(ABA/BNA) 01:158 to 01:159 (1990).]
However, earlier commentary to RPC 4.2 did not
suggest so broad an interpretation. The 1981 ABA
proposal stated:
This Rule prohibits communication
concerning the matter in representation by
a lawyer for one party with [the]
managing agents of a party that is a
corporation or organization, for such
persons speak for the organization. It
does not prohibit communication with
lower echelon employees who are not
[***5]
representatives of the
organization.
Whether a specific
employee is a representative of a client
can depend on the circumstances,
particularly whether the employee has
significant managerial responsibility in
the matter in question.
[Model Rules of Professional Conduct RPC 4.2 cmt.
(Proposed Final Draft 1981).]
The 1983 Debevoise Committee Report, which
recommended to the Court that it adopt RPC 4.2, based
its recommendation on the 1981 version of the ABA
commentary. See Report of the New Jersey Supreme
Court Committee on the Model Rules of Professional
Conduct, 112 N.J.L.J. July 28, 1983, Supp. 1-2. In
September 1984, the Supreme Court adopted generally
the ABA's Model Rules of Professional Conduct. The
Court has not, however, adopted the ABA's later
commentaries to RPC 4.2 that followed the submission of
the Debevoise Committee Report. See Pressler, Current
N.J. Court Rules, note on R. 1:14 (1993).
Absent a literal text or conclusive commentary,
courts and commentators elsewhere have adopted or
recommended a variety of approaches for determining
which persons may be considered "parties" for purposes
of RPC 4.2. Some of the more familiar are [***6] the
"control group test," the "managing speaking agent test,"
or the "alter ego test." See Felicia Ruth Reid, Comment,
Ethical Limitations on Investigating Employment
Discrimination Claims: The Prohibition on Ex Parte
Contact with a Defendant's Employees, 24 U.C.Davis
L.Rev. 1243, 1285-95 (1991). The control group is
defined as
those top management persons who
[have] the responsibility of making final
decisions and those employees whose
advisory roles to top management are
such [*299] that a decision would not
normally be made without those persons'
advice or opinion or whose opinions in
fact form the basis of any final decision.
[Fair Automotive Repair, Inc. v. Car-X Serv. Sys.,
Inc., 128 Ill.App.3d 763, 84 Ill.Dec. 25, 31, 471 N.E.2d
554, 560 (Ill.App.Ct.1984).]
The Illinois court concluded that a broader test
would bar too much relevant information from the factfinding process. Id., 84 Ill.Dec. at 32, 471 N.E.2d at 561.
The Washington Supreme Court adopted the second
approach, the "managing speaking agent test," in Wright
by Wright v. Group Health Hospital, 103 Wash.2d 192,
691 P.2d 564 (1984). That test precludes access [***7]
to only those employees with the power to bind the
organization, and was said by that court to represent the
ABA's approach as evidenced by the 1983 commentary
to the ABA rule. Id. 691 P.2d at 568-69. The purpose of
that approach is to shield corporate employees with
sufficient authority to bind the corporation from improper
advances by adversary counsel. Id. at 569.
In the CIBA-GEIGY case, the Appellate Division
ruled that the interpretation that best addressed the
concerns sought to be advanced by the RPC was the
"alter ego" test adopted by the New York Court of
96
Appeals in Niesig v. Team I, 76 N.Y.2d 363, 559 N.Y.S.2d
493, 558 N.E.2d 1030 (1990). Relying on Niesig, the
Appellate Division held that after the commencement of
an adversarial proceeding against a corporation, opposing
counsel could not directly interview any corporate
employees "'whose acts or omissions in the matter under
inquiry are binding on the corporation * * * or imputed
to the corporation for purposes of its liability, or
employees implementing the advice of counsel.'" 247
N.J.Super. at 325, 598 A.2d 895 (quoting Niesig, supra,
559 N.Y.S.2d at 498, 558 N.E.2d at 1035). [***8] We
granted the State leave to appeal from the Appellate
Division's ruling in CIBA-GEIGY, 126 N.J. 338, 589
A.2d 180, but later dismissed the appeal as moot when
the underlying criminal case was concluded by a plea.
130 N.J. 585, 617 A.2d 1213.
[*300] II
In the course of the argument of this review and the
argument of the CIBA-GEIGY appeal, the Court
perceived that many questions were left unanswered by
each of the formulations. For example, in the CIBAGEIGY case, corporate counsel did not contend before us
that RPC 4.2 insulated from the investigatory processes
of government those employees whom he described as
"fact witnesses" but rather insulated from pretrial
interviews only those employees whose acts or omissions
may be imputed to the corporation or whose statements
might constitute an admission on behalf of the company.
Although that interpretation may at first glance appear to
be a narrowing construction, it might well have the effect
under New Jersey law of precluding access to virtually
every employee of an organization and may not have
been the interpretation intended by the CIBA-GEIGY
court.
Under New Jersey's very broad concepts [***9] of
admissibility of evidence, a statement by a party's agent
or servant concerning a matter within the scope of the
agency or employment made during the existence of the
relationship is admissible in evidence against the party.
Evid.R. 803(b)(4). Hence, under either of the above
prongs, i.e., whether imputed to the corporation or
constituting an admission, most statements by a corporate
employee might fall within the prohibited group.
(Former employees are not, strictly speaking, covered by
the Evidence Rule.) How, too, can an attorney conduct
an interview when the right to conduct the interview
depends on facts and circumstances not apparent until
after the interview has occurred? Because many subtle
and complex problems of evidentiary law arise relating to
corporate liability, both in the civil and criminal context,
we deem it wise to defer final resolution of the issues
until we have had the benefit of a committee process that
can better advise us how to balance the competing
interests involved. Were we to adopt a blanket rule
prohibiting interviews with all employees whose
statements might be admissible against a corporation,
virtually no pre-filing investigations of [***10] claims
against corporations could be conducted without [*301]
the consent of corporate counsel. Real problems have
been posed concerning how an attorney preparing, for
example, an employment-discrimination case would be
able to satisfy himself or herself that the complaint was
well-founded in fact and was not frivolous. On the other
hand, we agree that a corporation should not be at a trial
disadvantage by virtue of its corporate status. Hence,
those employees trusted with conducting [**963] a suit
or claim on behalf of a corporation should receive the
same ethical respect from adversary counsel under RPC
4.2 as an individual would in managing his or her own
claim. We also believe, although we are not yet certain
of this point, that a category of employees may exist
whose conduct is so directly linked to the corporation
that adversary counsel should not have unrestricted ex
parte access to such individuals.
On that score, we must consider the extent to which
government lawyers may in criminal matters conduct
interviews of the employees of the corporation without
offending the corporation's Sixth Amendment right to
counsel. Once perceived incapable of committing a
crime, corporations have [***11] long since been
subject to criminal process. See New York Cent. &
Hudson River R.R. Co. v. United States, 212 U.S. 481, 29
S.Ct. 304, 53 L.Ed. 613 (1909) (imposing statutory
penalty on corporation for wrongful act of agent).
Although a corporation may not invoke a privilege
against self-incrimination, attorneys for corporations may
rely on the attorney-client privilege in certain
circumstances to prevent disclosure of communications
made to them. Upjohn Co. v. United States, 449 U.S.
383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). Courts must
determine how the unique nature of the corporation can
fairly be related to other principles of law, such as fair
trial or right to counsel.
We have not had occasion to address the question of
the scope of the provisions of N.J.S.A. 2C:2-7 that
impose liability on a corporation for the acts of its agents
and afford a due-diligence defense in certain
circumstances. We have an intuitive sense that when the
organization's liability would be based on an individual's
[*302] conduct, ex parte contact with [***12] the
individual should afford some measure of protection to
the alter ego that will suffer the punishment. A
corporation's Sixth Amendment right to counsel may be
implicated if government prosecutors might, after
indictment, unqualifiedly interview the individual whose
conduct establishes the guilt of the corporation. The
example that most frequently comes to mind is the
"valve-turner," one who opens the valve at the petroleum
company that discharges hazardous waste into a
waterway. That conduct, in and of itself, may be the
97
basis of the corporation's liability, criminal and civil. We
believe, for the present, that in the post-indictment, postfiling stages of litigation, adversary counsel should not
have the unqualified right to interview such an employee.
A concern was expressed at oral argument that that rule
prohibiting access to such an employee would
unnecessarily hamper the trial preparations of
government prosecutors even after indictment. "By
obtaining the indictment, the State represents that it has
sufficient evidence to establish a prima facie case." State
v. Sanchez, 129 N.J. 261, 276, 609 A.2d 400 (1992).
Hence, the State will know in almost [***13] every
instance whom it may and may not freely interview.
We would temper the Rule, however, by interpreting
the RPC to require, in that context, notice rather than
consent. The Association of Criminal Defense Attorneys
(Association) advanced that position. Recognizing that
the relationship between corporate counsel and corporate
employees is particularly sensitive in the criminal field,
the Association has argued before us that the corporate
attorney has only the right to be present at such
interviews. A corporate attorney could not (because of a
conflicting position as counsel for the corporation) act as
counsel to such employees in a criminal matter. The
party requesting the interview should seek to
accommodate the reasonable concerns of other counsel,
such as unavailability or other scheduling problems.
Corporate counsel may not, however, stonewall the
inquiry. Corporate counsel would be expected to have
the right to clarify an inquiry for the witness but not to
terminate the interview. At the [*303] request of the
employee, corporate counsel might, subject to ethical
restraints, answer any questions the employee might
have. Such an interview should not be a mini-deposition.
In civil [***14] cases, allowing informal interviews of
employees serves to decrease the number of costly
formal depositions. Jerome N. Krulewitch, Comment, Ex
Parte Communications with Corporate Parties: The
Scope of the Limitations on Attorney Communications
with One of Adverse Interest, 82 Nw.U.L.Rev. 1274,
1283-84 (1988).
We confirm, as did the ACPE, the ethical restrictions
that are imposed on a lawyer [**964] conducting such
an interview, particularly an ex parte interview. The
attorney conducting the interview must inform the party
being interviewed of the purpose of the interview; that it
is in an adversary context; and that he or she may wish
counsel. See RPC 4.3. Corporate counsel are equally
aware of the ethical restrictions that are imposed on the
representation of the multiple interests of the corporation
and the employee. RPC 3.4(f)(1, 2). Evidence in such an
interview might serve to exculpate the corporation and
inculpate the individual. A corporation might need to
provide separate counsel for such an employee.
To sum up, we shall for the present limit the
application of RPC 4.2 in the organizational context to
(a) the control group, which, [***15] for now, we
interpret to mean those employees of the organization
entrusted with the management of the case or matter in
question, and (b) the employee or employees whose
conduct, in and of itself, establishes the organization's
liability. With respect to that latter class of employees,
we interpret the RPC to require notice to, rather than
consent from, the organization's attorney and to be in
effect after filing of an indictment or civil complaint.
Any deliberate delay in filing to circumvent the ethical
restraints of the RPC will not be countenanced. For now,
those ethical restraints apply to the interview of present
and former employees in the two classes.
Finally, we will refer these issues, as well as the
application of the RPC, pre-indictment and pre-litigation,
to a special committee for the purpose of preparing a
report that will more fully assess [*304] the policy
implications in these varied contexts. At heart, the rule
requires a balance of fairness and practicality in the
conduct of adversarial matters.
98
APPENDIXJ
REPORTS OF THE NEW JERSEY SUPREME COURT
SPECIAL COMMITTEE ON RPC 4.2
In deciding In re: Opinion 668 o f the Advisory Committee on Professional
Ethics,. 134 N.J. 294 ( 1993), the Supreme Court created a special committee to
investigate the underlying ethical issues that surro und efforts to conduct ex parte
communications with current and fonner corporate employees. The committee
has submitted its report, which recommends amendments to RPC 1. 13, RPC 4.2,
and RPC 4.3.
The Court has approved the report· for publication and comment. No other
action has been taken in respect o f the report and its recommendations.
Any members of the bar seeking to comment on the committee's report should
submit those comments, in writing, to me by June 15, 1995, at the following
address: Clerk of the Supreme Court, Hughes Justice Complex, CN 970, Trenton,
New Jersey 08625.
Stephen W. Townsend, Esquire
Clerk of the Supreme Court
Dated: March 20, 1995
February 21, 1995
I
MEMORANDUM TO:
Honorable Sylvia B. Pressler
Honorable Edwin H. Stern
David H. Ben-Asher, Esq.
Jack M. Sabatino, Esq.
Barbara Ann Sellinger, Esq.
Debra L . Stone, Esq.
Sharon B. Ransavage, Esq.
M. Karen Thompson, Esq.
Alan Zegas, Esq.
George C . Jones, Esq.
FROM: J oseph J. Barraco, Esq.
SUBJECT: R.P.C. 4.2 Committee Report
Pursuant to our telephone conference call of last Thursday I am sending a
facsimile copy of the final draft of the Committee's Report (28 pages including this
cover page) which embodies the changes agreed to during the Conference call and
a proposed commen! to each rule drafted by Judge Pressler. Note: l am not sending
a copy of the appendices to the Report. There are no changes to the appendices.
---
In accordance with the telephone conference call, the Report wlll be filed as
amended herein. After discussion with Judges Pressler and Stem I am sending a
copy to each member so that you can review the changes and additions. However,
in a~cordance with the agreement of the Committee members there will be no
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99
... ... ..,.... .
f~
APPENDIXJ
further substantive revisions to the Report. If any member believes that this Report
is not consistent with what was agreed upon during the Conference call please call
Judge Pressler or Judge Stem by Friday afternoon.
J.J.B.
TABLE OF CONTENTS
I. Introduction
11. Committee Charge
III. Committee Membership
IV. Committee Deliberations
V. Discussion of Caselaw
VI. Suggestions for Change
VII. Committee Recommendations
APPENDIX I Committee Charge
APPEND,IX 2 Suggestions for Change
' ··
....
a. Written Presentations to Committee
1. Association of Criminal Defense Lawyers
a. Initial Submission
b. Subsequent Position
2. George Grochala, Esq
3. Commercial Union Trust Company
b. Oral Presentations to the Committee
I. New Jersey County Prosecutor's Association-Daniel J. Carluccio, Esq., Ocean County Prosec'\)tOr
2. First Assistant U.S. Attorney Paul Fishman
3. Association of Criminal Defense Lawyers-Alan Silber, Esq. ·
4. New Jersey Corporate Council Association-David S . Machlowitz, Esq., Assistant General Counsel,
Siem ens Corporation
5. Richard J. Jeydel, Esq., Senior .Vice-Pres ident and General Counsel,
Kanematsu, U.S.A. ·lnc.
6. Attorney .General's OfficeDeputy Attorney General Mark C ronin
7. Employee Lawyers Association--Bennett Zurofsky. Esq
8. Richard Crooker, Esq.
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100
REPORTS OF THE SPECIAL COMMITTEE ON RPC 4.2
I. INTRODUCTION
In . light of In the Matter of O pinion 668 of the Advisory Com mittee on
Professional Ethics, l34 N.J. 294 (1993), a Committee, comprised of persons
representing the diverse interests of corporations, plaintiffs, prosecutors and
private defense counsel, was established by the Supreme Court. The Co mmittee
solicited input from a broad spectrum of interested parties and held a public
hearing. The discussions of the Committee, prior to preparing its
recommendations, were far reaching. Ultimately the Committee was able to reach
a unanimous consensus on its recommendations, which it believes will go far to
resolve the problems regarding ex parte communications.
The Committee would ma intain the absolute bar to ex parte communications
with represented parties, but has deve loped a practical approach for ascertaini ng
such representation and to resolve the complex question regarding the ability of an
attpmey to talk with organizational employees. The Committee believes that an
attorney shou[d not be able to communicate ex pane with an organizational
employee significantly involved in determining the organization's leg al position in
a matter. An initial communication designed to ascertain such representation, or
ent!tlement to such representation, wo uld be authorized.
The Committee is recommending that the tenn organization in RPC 1.13. be
defined to include corporate; as well as non-corporate, entities. The Committee is
. also recommending that organizational representation be extended only to the
litigation control 'group. The litigation control group would be defined to include
1
current and former agents for, or significantly involved in, the detennirtation of the
organization's legal position In the matter, whether the matter is in litigation or not.
It would inClude those who had been part o f the litig~tion control group as well as
those .who currently are. Significant involvement would be d efined to require
involvement greater thim merely providing factual information or data regarding
the matter in·question. The Committee is recommending that RPC 4.2 be amended
·to make clear·that, in addition to not communicating with a person a lawyer knows
is represented, a lawyer has a responsibility of due diligence in ascertaining
whether a person is represented. Finally, the C ommittee is proposing an
amendment to RPC 4.3 to ·require that a lawyer, where the lawyer ascertains a
person is not represented or entitled.to be represented by a11 organization's counsel, .
tell the person he or she is not represented by the orga nization's counsel.
II. COMMITIEE CHARGE
In In the Matter of Opinion 668 of the Advisory Committee l?" Professional
Ethics, 134 N.J. 294 (1993), the Supreme Court was a sked to review Opinion 668,
132 N .J.L.J. 573 (1992), of the Advisory Committee on Professional Ethics .
Opinion 668 concluded that the rationale in State v. Ciba-Geigy Co rp., 247 N.J.
Super. 314 (App. Div. 1991), which aealt w ith the ethical restraints on ex parte
interviews of <;:urrent employees of a corpora te litigant, applied with e quai ·force to
the conduct of 'e x parte interviews of former employees ofa corporate litigant The
Supreme Court expressed reservations about the scope of State v. Ciba-Geigy a nd
decided to reserve ·decision of. the underlying ethical issues until it received a
report of a special committee which it charged with assessing the concrete effec ts
of any rule that the C oun might adopt. In the Matter of Opinion 688, supra, at 296297.
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101
APPENDIXJ
On December 16, 1994, Stephen W. Townsend, C lerk of the Supreme Court, on
behalf of the Court, sent a letter to Judge Sylvia B. Pressler, Chair ofthe Supreme
Court Committee on Civil Practice, and Judge . Edwin H. Stem, Chair of the ·
Supreme Court Committee on C riminal Practice, asking them to fonn a select
committee comprised of members of their respective committ~es supplemented by
ad hoc members to review issues raised in In the Matter of Opinion 668. [Note I]
The Court asked for the Committee's advice as to whether and what extent it
might change the current fonnulation o f the RPC .to clarify its scope and breadth
in various contexts. The Court specifically a~ked that the Committe.e .not feel
bound by current definitions·as to wha~ constituted ethical or unc;thical behavior.
To focus Committee review, the letter set forth a number of inquiries for
Committee consideration:
··
• Should the rationale in State v. Ciba-G~}~Y apply to e" parte interviews of
fo mter employees?
• Since a statement by a party's .agent .or servant conct<rnlng a matt~r within the
scope of the agency or employment, made during the existence Qf a relati(Jnship,
normally is admissible in evidence against a party, see Evid.:It 803(b}(4j, is such
a statement "binding on" or "imputed to" the corppr.atio~ o.r does the RPC apply
only to a limited class of witnesses?
• What distinction, if any, should be made betwe~n interviewing an employee
whose conduct ·may directly impute liability to the corp9ration,, as in th,e case of a
"valve-turner," or. an employee who merely observes such conduct?
* Would the analysis be different if either 0 fthe witnesses were to state that the
president of the company had been present and ordered that the valve be turned?
• In a civil RICO maiter or a criminal conspira,cy, is a ,government attorney
precl uded from inteiViewing a member of the organization whose acts may b e
imputed to the'-Qrganization?
,1
• Is the consent of'the attomey .for the organization ncces.s ary?
• At what point does the RPC come into play?
* In the civil context does· the RPC apply befor~ the commencement of
litigation?
• If it does, how may an attorney investigate a client's ciaill)?
.
• What is the proper scope of the tenn "organization"?
• Should the concept of organization be extended to cover non-corporate
.organizations, such as business proprietorships?
• What is the relationship between the Sixth A mendment right to counsel and
the RPC?
,. To whom does the right belong, i.e., the corporation, the employee or both?
• Since Sixth Amendment rights apply at every critical stage . of the
proceedings, what are the critical stages in a crimina! investigation that trigger the
'right?
III. COMMITTEE MEMBERSHIP
Judges Pressler and S tem formed a committee comprised of members of the
Supreme Court Committees on C ivil and Criminal Practice. Membership on the
Committee was supplemented with private practitioners representing
corporations, as both in·house and out-of-house counsel, and plaintiffs attorneys.
The members of the Committee are:
Sylvia Pressler, J .A.D.
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102
REPORTS OF THE SPECIAL COMMITTEE O N RPC 4.2
Edwin H. Stem, J.A. D.
David Ben-Asher, Esq.
Jack M. Sabatino, Esq. [Note 2}
Barbara Ann Sellinger, Esq., Chief Labor and Litigation Counsel,
Nabisco Inc.
Debra L. Stone, Esq., Deputy Director of Operations, Division of
Criminal Justice, Attorney General's Office
Sharon B. Ransavage, Esq., Hunterdon County Prosecutor
M. Karen Thompson, Esq.
Alan Zegas, Esq.
George C. Jones, Esq.
S:rAFF: Joseph J. Barraco, Esq., Criminal Practice Division,
Administrative Office of the Courts
IV. COMMITTEE DELIBERATIONS
The Comrrittee reviewed the caselaw and literature on.the issues involved. The
Committee sought input from a broad spectrum of interested parties, both public·
and private .. The Committee sent specific letters to a number of parties inviting
written suggestions or oral testimony at a public hearing held June 8, 1994. The
following parties were contacted:
·
New Jersey Cotporate Counsel Association
ATLA --New Jersey
·
•
Association of Criminal Defense ·Lawyers ofNew Je~sey
New Jersey County Prosecutor's Association
New Jersey State Bar Association-- Civil Tria] Section
-- Corporate/Business Section
Criminal Law Section
-~ Products Liabilityffoxic Torts Section
United State Attomey Michael Chertoff
Bennet D. Zurofsky, Esq.
Theodore W. Geiser, Esq.
Theodore V. Wells, Jr., Esq.
Stephen D. Cuyler, Esq.
Frederick A. b ."Schwartz, Jr., Esq.
The Committee also published notice of the public hearing in the New Jersey
Law Jom;nal and N ew Jersey . Lawyer inviting written submissions or oral
presentations at the hearing.
V. DISCUSSION OF CASELAW
Rule of Professional Conduct (RPC) 4.2 prohibits an attorney from having ex
parte communications with a party who is represented by counseL The "rule
provides:
In representing a client, a lawyer shall not communicate about the subject of
the representa tion with a party the lawyer knows to be represented by another
la wyer in the matter, unless the lawyer has the consent of the o ther lawyer or is
authorized by law to do so.
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103
APPENDIX J
Although easily applied to typical lawsuits between individuals, application of
RPC 4.2 becomes difficult when a party to a suit is an organization. [Note 3]
Confusion stems from an organization's. inability to speak except through natural
persons. Defining which people associated with an organization are considered
parties by RPC 4.2 becomes critical in determining the scope of the rule's
prohibition of ex parte contact.
The Special Supreme Court Committee on RPC 4.2 considered various judicial
interpretations of the application ofRPC 4.2 to corporations, placing emphasis on
policy concerns and potential ramificati9ns of each interpretation. This section
surveys definitions adopted by judicial authorities, including blanket prohibitions
on ex parte contacts, "facts and circumstances" tests, the "control group test", the
"alter-ego test'', the "managing speaking agent test", and the New Jersey Supreme
Court's temporary ruling In the Matter of Opinion 668 Of the Advisory Committee
on Professional Ethics. [Note 4} These rules strive to balance fairness to all parties
with the practicalities of litigation.
.
A b lanket prohibition on ex parte contact poses the simplest interpretation of
RPC 4.2 and provides maximum protection to corporations. [Note 5] '[his rule,
which requires formal proceedings before any employee is. interviewed, was
adopted by two federal courts in cases concerning former employees. [Note 6] In
a subsequent·case the court decided not to follow ·the decision in PSE&G. [Note
7] Interpretations of RPC 4.2 which allow blanket prohibitions on e x parte
communication have been criticized for being over-broad. [Note 8] Blanket
prohibitions on ex: parte contact are also criticized because fonner employees can
rarely bind or take action which could be attributed to a corporation. [Note 9]
Some federal district courts have adopted a -flexible interpretation of RPC 4.2
which require a judge.to evaluate the "facts and circumstances" of each case. [Note
lOJ Finding it irriNSsible to fashion an interpretation of RPC 4.2 whi~;h could
govern all cases [Note 11), these courts require an independent analysis of each
situation that arises. Judges are directed to inqui~e into whether (1) the employee's
statement concerns a matter within the scope of an employee's employment and
(2) whether corporate counsel's presence is necessary to ensure effective
representation ofthe organization. [Note 12] The chief criticism of the "facts and
circumstances" test is that it offers attorneys no guidelines for legal conduct.
Because severe penalties-attach to a finding of an ethical violation, attorneys .
require guidelines in ex parte situations {Note 13)
The "control group" test, adopted by an Illinois Court of Appeals limits RPC
4.2's application to the control group, defined as:
[T}hose top management persons who had the responsibility of making final
decisions and those employees whose advisory roles to top management are such
that a d ecision would not normally Qe made without· those persons'. advice or
opinion or whose opinions in fact form the basis of any final decision. (Note 14]
The Illinois Court of Appeals held that the "control-group" test, originally used
to define the scope of the attorney-client privilege as it pertained to corporations,
[Note 15) was also applicable to the ethics rule. [Note I 6] According to the Illinois
court [Note 17], a narrower test would inadequately protect corporate parties, and
a broader rule would bar too much information from the fact-finding process.
[Note 18] However, the "control-group'' test has not g ained w idespread
acceptance, perhaps because the United States Supreme Court rejected the
standard in the context ofthe attorney-client privilege. [Note 19]
The "managing speaking agent" test provides a more widely accepted approach
to the interpretaJion of RPC 4.2. (Note 20] This test prohibits ex parte contact with
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REPORTS OF THE SPECIAL C OMMITTEE ON RPC 4.2
employees who "have man aging authority sufficient to give them the right to speak
for, and bind, the corporation." [Note 2 i)
This test does not include former employees. [Note 22] Nor does the
"managing speaking agen(' test shield a corporation's non-management
employees whose acts create liability. (Note 23) Nevertheless, the "manag ing
speaking agent test" provides a corporation with greater protection than the
"contro l·group" test because it includes m iddle and lower level employees who
make managerial decisions . [Note 24] Adherents of the "managing speaking
agent" test contend that the rule comports with the purpose of the disciplinary rule,
protecting the corporation's agents who can bind the corporation from be ing
uneth ically influenced by opposing counsel. [Note 25]
The "alter-ego" test demonstrates another attempt to both adequately protects
corporations and facilitate litigation. [Note 26] Although similar to the "managing
speaking agent" test, the "alter-ego'' test delineates three types of employees
protected by RPC 4.2. These a re: corporate employees whose acts or o missions
are binding on ~he corporation (effectively, the corporation's ''alter~gos") ;
employees whose acts or omissions may be im puted to the corporation for
purposes of liability; and employees implementing the advice of counsel. fNote
27] The New Jersey Appellate Division further noted that these prohibitions on ex
parte cOnduct fail to apply before forma l legal or adversarial proceedmgs have
begun. (Note 28) Thus, a defendant becomes ''a partY" for purposes of RPC 4.2
only after the formal commencement·ofproceedings . (Note 29]
.
'
Certain aspects of the "alter-ego" tes t remain ambiguous. For instance, the
courts have not clearly stated the whether an attorney would be barred from
approaching fact witnesses under the alter-ego test. [Note 30] If the courts find this
to be the case, New Jersey's broad concepts of admissibility of evidence: might
effectively preclude access of opposing counsel to most employees. fNote 31}
Another concern is that an attorney may ·not know whether an interview is
prohibited because the prohibition hinges on facts that remain unknown until the
interview occurs. [Note' 32] The New Jersey Appella·re Division noted chat these
dangers exist, and that they may deter some ex parte communicati~)J)S . fNote 33)
After analyzing several alt.e mative tests, the New Jersey Supreme Court
adopted interim g~idelines until ·this C ommittee fully assessed the concrete effects
of the adoption of the various rules. [Note 34J The interim application of R P.C 4.2
utilizes asp ects .of the "control group" test and the "alter-ego" test, prohibit·ing ex
parte contact with (l) the "contro l group," which was interpn:tcd as "those
employees of the organization entrusted with the management of the case o r
·.matter in question'1 and (2) "employees whose conduct, in and ofitselr. establishes
the organization's liability." [Note J 5) Regarding the second·group of employees
with whom ex parte contact is prohibited, the New Jersey Supreme Court
explained that RPC 4.2 only requires n otice to, rather than consent from, the
organization's attorney. [Note 36] Finally, the New Jersey Supreme Court noted
that its interim. rules should nol be binding on the Commi«ee: the Committee
should only·consider the parts of the interim test that it finds meritorious as it
co"mes to an independent determination c oncerning RPC 4 .2's application lo
corporations. [Note 37)
·
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APPENDIXJ
VI. SUGGESTIONS FOR CHANGE
A number of interested parties submitted written material. or made oral
presentations to the Committee. [Note 38] The positions expressed varied widely.
[Note 39] Some of the positi~ns expressed over RPC 4.2 should be construed to:
• Prohibit ex parte interviews without notice to corporate counsel.
• Prohibit ex paite communications with all current and former employees
having managerial responsibility on behalf of the corporation; whose acts or
o missions could be imputed to the corporation; or whose statements constitute
admissions.
* Give corporations· the same protections as individuals. Pre·fndictment
interviews would be allowed of any employee. Post-Indictment interviews wo uld
be allowed except with present or former directors or managerial agents who can
bind the corporation.
* Permit ex parte interviews; except interviews of persons directing the
litigation.
• Re<:juire that anorneys not make misrepresentations during , ex parte
interviews.
* Not.. ~pply to Justice Department anomeys who are bound by that
Department's regulations.
VII. COMMITTEE RECOMMENDATIONS
RPC 4.2 prohibits a lawyer in representing a client from corrununicating about
the subject of the representation with a party the lawyer knows to be represented
by another lawyer .in the matter "unless the lawyer lias the consent of the other
lawyer or is authori~ed by law to do so." The Committee adheres strictly to the
stated prohibition against communication with represented persons while at the
same time defining "represented persons" in the context of corporate, or other
organizational, representation. The question then · is to make clear which
corporate, or other organization's, agents and employees are properly deemed to
be represented by counsel so as to preclude an attorney representing a client
adverse to' the interests of the corporation, or other organization, from either
communicating with that employee or having the obligation. to notice counsel of
·an intended conununication.
The Committee decided initially to define the term "organization" in RPC 1.13
so as to insure there was no confusion about what type of entity was covered by
the RPC. The Committee included in the definition corporate, as well as noncorporate entities;· since it was of the opinion that there was no valid reason for
distinguishing, for purposes of the RPC, between corporate and other non.. corporate entities. Thus, the Committee included in its definition corporations,
partnerships, associ~tions, joint stock companies, unions, trusts, pension funds,
unincorporated associations, proprietorships, other business entities, state or local
governments, or political subdivisions thereof, and non-profit organizations.
The Committee then defined to . whom corporate, or non-corporate,
representation extended. The recommendati'on is that representation extend to the
litigation control group. The litigation control group is defined to include current
and former agents and employees responsible for, or significantly involved in, the
determination of the organization's legal position in the matter, whether or not in
litigation. It also includes both current and former members of that group.
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Signi fie ant involvement requires involvement greater that merely supplying
factual information regarding the matter in question.
The Committee tied representation to those involved in making a detennination
regarding the organization's legal position in the matter. The definition would not
require that litigation !JCtually be pending, but rather would include situations
where litigation is imminent or probable. Implicit in the C ommittee's
recommendation is a rejection of the concept of defining control group in terms of
the subject matter of the .controversy. The Committee was of the opinion that a
definition expressed in terms of subject matter of the controversy would simply
include too many people wht., as a practical matter, could not realistically l>c
considered as repr.:sented by the organization's counsel and whose interests arc
most likely not only not congruent with the organization's but also, in many cases,
in conflict with it. Rather, the control group is defined in terms of the concept o f
significant involvement in the determination of the organization's legal position in
the matter. Thus, the recommended definition does not tie representation as much
to speci fie individuals, i.e. directors or officers, as it ties representation to those
who are involved in making decisions regarding the organization's legal position.
ln this regard the Committee is of the opinion that whether the agent or employee
is a present or former agent or employee is not significant. The key is not the
agent's or employee's status but role in determining the organization's legal
position. The Committee's definition does not specifically make a distinction
between interviewing an agent or employee whose conduct may directly impute
liability to the organization, as in . the case of a valve-turner, · or an agent or
employee who observes such conduct. The fact that an agent or employee may
impute liability, in an~ of itself, does not determine whether he or she is
represented by the organization's counsel, thus implicating the ex parte
communication bar.
The Committee's definition also envisions that a so-called fact witness should
not be assumed to be an agent or employee to whom a communic:;ation bar would
auto·matically apply. Only in those situations where the fact witness would a lso be
. significantly involved, in ways other than just supplying information, in
determining the organization's legal position would the . bar apply. This is
consistent with the Committee's decisi.on that the status of the agent or employee
is not as .important as'·role in determining the organization's legal position. The
Committee is recommending changes to RPC 4.2 to make it clear that in addition
to a l;Jwye~ not communicating with a p·erson the lawyer knows is represented, a
lawyer also has .a responsibility of "reasonabl~ diligence" in asserting whether a
person is represented. Of course, if the sole pwpose of the c·ommunication is to
ascertain representation, the contact would not be prohibited. The proposed
amendment would indicate that.reasonable diligence includes, but is not limited
to, a specific inquiry of the person as to whether he o'r she is represented by
counsel. Additionally, an amendment is proposed to RPC 4.3 to require the lawyer,
in addition to inquiring regarding representation, where the lawyers ascertains that
the person is not represented, or en!itled to be represented by the organization's
attorney, tell the person that, as far as the lawyer understands, the person is not
represented by the organization's attorney.
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APPENDIX J
RPC t.J3 Organiza~ion as the Client
(a) A lawyer employed or retained to represent t~e organization as
distinct from its directors, officers, employees, members, shareholders or
other constituents. Nevertheless, for the purposes of RPC 4.2 and 4.3, the
organization's lawyer shall also be deemed to represent the litigation control
group which shall be deemed to include current and fanner agents and
employees responsible for, or significantly involved in, the determination of
the organization's legal position iT) the matter, whether or not in litigation,
provided, however, that "significant Involvement" requires involvement
greater, and other than, the supplying o f factual infonnation or data
respecting th\! matter.'
(b) ... No Change
(c) . .. No Change
(d) ... No Change
(e) ... No Change.
(f) For purposes of this rule "organization" includes any corporation,
partnership, ass.oCiation, joint stock company, union, trust, pension fund,
unincorporated association, proprietorship or other business entity, state or
local government or political subdivision thereof, or 'non-profit
organization.
COMMENT ON PROPOSED R.P.C. 1.13
The amendment of paragraph (a) of this rule lies at the heart of the Conunittee's
proposal for ~efining those persons w:ho •. for the purpose ofR.P.C. 4.2, are deemed
to be represeh~ed by the organization's jittorney and hence who may ·not be
communicated with by an attorney representing the interest of another in the
subject matter. The basic concept is to define those persons as the "organization's
litigation control group." The substantive content of that phrase is provided by the
ensuing series of qualifiers.
T he Committee is aware that.although the subject m atter of the representation
is frequently a matter in litigation; it need not be. The representation of the
organization may be in respect of a transactional matter, or a matter in prelitigation stages or in an alternative dispute forum, or a matter under investigation.
II was the Committee's . intention to make the subject matter· entitled tp the
protection of this rule as broad as "the subject of ·t he representation" is under
R.P.C. 4.2. The inclusion of the word "litigation" in the phrase "litigation control
group" was intended to emphasize that membership in the control group is
essentially defined by the person's significant involvement in or. the responsibility
for determining the organization's legal position in the subject matter. That is to
say, it does not include persons whose actions bind the organization or are
imputable to the organization or who are responsible for other aspects of
organizational policy unless they meet the "legal position" test. In order to avoid
any ambiguity otherwise resulting from that word, the term "matter" has been
defined as a "matter whether or not in litigation." The gamut of representational
undertakings is thereby intended to be included.
·
In further defining membership in the litigation control group, the Committee
proposes to include both present and former agents and employees. "Agents" is
used because there may be other persons meeting the litigation control gro up
definition who are not on the payroll, such as for example, certain stockholders or
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REPORTS OF THE SPECIAL COMMITTEE ON RPC 4.2
consultants. While it is clear that the litigation control group is a fluid concept and
that its membership will not necessarily be the same for every subject matter, it is
also clear that its membership may change during the pendency of the subject
matter. The word "fonner" is intended to make clear that the rule covers a \I persons
who were, as well as those who currently arc, members of the litigation contro l
group .
The Committee decided not to attempt to define the phrase "responsible for o r
significantly involved in the determination of the organization's legal position"
beyond the definiti on provided by the rule itself. There are obviously a great many
variables, the issue is fact-sensitive, and the Committee was concerned that an
illustrative listing of indicia of the involvement would be counterproductive. It
was, moreover, the Committee's sense that as a practical matter, there would be
consensus within the legal community on most factual complexes.
Paragraph (f) is proposed co be added 10 the rule to provide an expansive
definition of organizations covered thereby. The Committee saw no reason to
distinguish, in this regard, between a corporation and any other commercia l o r
non-commercial organization.
RPC 4.2 Communica.tion with Person Represented by Counsel
ln representing a client, a lawyer shall not communicate about the subject of
the representation with a party the lawyer knows, or by the exerci~e of reasonable
diligence should know, to be represented · by . another ·lawyer in the matter,
including members of organization's litigation control group as defined by RPC
1.1 3, unless the lawyer has the consent of the other lawyer or is authoriz ed by law
to d o so[.], or unless the sole purpose of the communication is to ascertain whether
the person is in fact represented . Reasonable diligence shall include, but not be
limited to, a specific inquiry of the p erson as to whether that person is represented
by counsel.
COMMENT ON PROPOSED R.P.C. 4.2
The Committee proposes several amendments to this rule. First, o.f course, is
inclusion of members of the organization's litigation control group. among those
protected by the communications bar. Second is the generally applicable provision
that the corrununications bar extends not only to persons the attorney knows to be
repr~sented but also to that' it includes those the attorney should know, by an
exercise of due diligence, to be represented. The reasonable-diligence obligation
dictates a single exception to the communications bar ·which is provided by the
amendment; namely a communication may be· made whose sole purpose is to
ascertain the fact of representation. Note, however, that such a direct inquiry of the
person invo)ved will not in every case satisfy the ~equiremem of "reasonable
diligence." The attorney making the inquiry will, moreover, have to exercise a
great deal of caution and circumspection in making the inquiry of a person who
may be or presumptively is a member ofan organization's litigation co ntrol group.
This problem is further addressed in the proposed amendment to R.P.C. 4 .3.
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APPENDIXJ
RPC 4.3 Dealing with Unrepresented Person; Employee of Organization
In dealing on behalf of a client with a person who is not represented by counsel,
a lawyer shall not state or imply that the lawyer is dis interested. When the lawyer
knows or reasonably should know that the unrepresented person misunderstands
the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct
the misunderstanding. If the person is a director, officer, employee, member,
shareholder or other constituent of an organization concerned with the subject of
the lawyer's representation but no( a person defined by RPC I.IJ(a), the lawyer
shall also asce.rtain by reasonable di ligence whether the person is acrually
represented by the organization's anomey pursuant to RPC 1.1 3(e) or who has the
right to such representation on request, a nd, if the person is not so represented or
entitled to representation, the lawyer shall make known to the person that insofar
as the lawyer understands, the perso.n is not ·being represented by the
organization's attorney.
COMMENT ON R.P.C. 4. 3
The proposed addition to this rule is based on the understanding that while the
organization's representational undertaking does not automatically include
representat_ion of officers, directors, employees, shareholders or others -- and
indeed, there may a conflict of interest in su.ch duai representation -- never1heless,
absent such a conflict, the organi:r.ation's attorney may be representing such a
person consistent with the authorization of R.P.C. I.IJ(e). The amendment is
intended to make clear the obligation of the adverse attorney to ascertain by
reasonable diligence whether any such persons who are not also members of the
litigation cc.m'trol group are in fact ·so represented or have a right to such
reprcsentatioil.. An adverse attorney so determining has the additional obligation
of advising the person that insofar as the attorney understands. the organization's
lawyer does not represent that person.
Nore I : See letter from Stephen W. Townsend co Judges Pressler and Seem in f-ppcndu. I .
Nore 2 : When appointed to the Committee. Mr. Sabat ino was the Direcror of the D'""'on o( l.&""
Nore 3 : The Committee is proposing that the term "organiz.arion" be defined IS inclu<hnl: an}
corporation, pannership. association, joinc stock company. union. trust, pension fund. umncorpor~tc:d
association, proprietorship or other business entity, slllte or local government or puht•cal sutw:hvuoon
thereof, or non -profit organization.
Note 4 : In the Maner of O pinion 668 of the Advisory Committee on Profess•onal
294 ( 1993).
(thoc~. 1).:1
I'.J
. Note 5: See Felici a Ruth Reid, Eth ical limitations On Investigating Emp loyment iJu.cn mmallon
C laims: The Prohibition on E" Parte Contact Wilh A Defendant's Employees, 24 U.C o~.,,~ l. Rc•··
1243, 1277 (1991 ).
Note 6: Public Ser.-. Elec. & Gas v. Associated Elee. and Gas Ins. Servs.• 745 F. Supp '.037 (0
N.J. 1990); Cagguila v. Wyeth Laboratories, Inc., 127 F.R.O. 653 (E.O. Pa. 1989)
Note 7: Curley v. Cumberland Farms, 134 F.R.D. 77, 81 (0. N.J . 1991 ).
Note 8 : ld. at 86·.
Note 9: Slllte v. Ciba-Geigy, 247 N.J. S uper. 314,321 (App. Div. 1991) .
Note 10 : Monison v. Brandeis ur· rcrsity, 125 f .R.D. 14 (D. Mass. 1989}.
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REPORTS OF THE SPECIAL COMMITTEE ON RPC 4.2
Note II: Mompoint v. Lotus Corp., llO f.R .D. 414 (D. Mass. 1986).
Note 12: ld.
Note I 3: Jerome N. Krulewnch. Ex Pane Communications With Corporate Panies: The Scope Of
The Limitations On Attorney Communica tions With One O f Adverse Interest, 82 Nw. U. L. Rev..
1272, 1295 ( 1990}.
Note 14: Fair Automotive Repair, Inc. ,., Car-X Scrv. Sys.,lnc., 471 N.E.2d ·554, 560 (Ill. App. Ct.
.
1984~
Note 15: Consolidatio n C oal Co. v. Bucyrus- f.rie Co., 432 N.E.2d 250 (111. 1982}.
Note 16: Fair Automotive Repair, Inc. v. Car- X Scrv. Sys., lnc., 471 N.E.2d S54, 560 (Ill. App. Ct.
1984).
Nole 17: ld.
Note 18: Jd.
Note 19: Upjohn C o v. United States, 449 U.S. 383. 101 S.Ct. 617, 661....Ed. 2d 584 ( 1981}.
Note 20: Chancellor v. Boeing Co .. 678 F. Supp. 250,253 (D. Kan. 1988}; frey'<. Depanment of
Health and lUtman Se rvs .. 106 f .R. D. :32, 35-36 (E.D.N.Y. 1985); Shealy v. Laidlaw Bros., Inc ., 34
Fair Empl. Prac. C as. (BNi'-) 1223 (O.S.C. 1984); Wright v. Group Health. Hosp., 103 Wash.2d 192,
691 P.2d 564 (Wash. 1984}.
Note 21: Wright v. Group Heallh Hospital, 691 P.2d 564; 569 (1984}.
Note 22: ld.
Note 23: Reid, supra, note 5, at 1243.
....
Note 24 Krulewitch, suprn, note IJ. at IJOO.
Note 25: Wright v. Group Health Hosp., 691 P. 2d 564,510 ( 1984).
Note 26: State V. C iba-G eigy, 247 N.J.Super. 314. 325 (App. Div. 1991 ); See also Niesig v. Team
I. 558 N.E.2d JOJ O, 1035 (1990) ; Str.twscr v. Exxon Corp .• 843 P.2d 613 (Wyo. 1992).
Note 27: Niesiq v. Team I, 558 N.E.2d 1030, 1034 (N.Y. 1990).
Note 28: State v. Ciba-Geigy. 247 N.J .Super. 314, 320 (App. Div. 1991).
Note 29: ld.
Note 30: In the M aner of Opinion 668 Of the Advisory Comr.tittee On Professional Ethics, i 34
N.J. 294, 300 (199 3).
·
.
Note 31 : ld.
Note 32: ld.
Note 33: State v.' Ciba-Geigy, 247 N.J.Super. 314, 325 (App. Div. 1991).
Note 34: In the Mauer of Opinion 668 Of the Advisory Committee On Professional Ethics, 134
N.J. 294 (1993).
·
Note 35: ld. at 302.
Note 36: I d.
Note 37: ld ..at 296.
Note 38: Copies of all written ~1Jbmissions are on file wilh Joseph J. Barraco, Esq ., C hief of
Crim inal Court Services of the Adminislr.~tive Office of the Couns; Criminal Practice Division.
Note 39: A s ummary of all written and oral presentation s arc cont.tined in Appendi><
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APPENDIXJ
APPENDIX 1
SUPREME COURT OF NEW JERSEY
Dece mber 16, 1993
Hon. Sylvia B. Pressler, Chair
Civil Practice Committee
Court Plaza North
25 Main Street- 5th Flo·or
Hackensack, NJ 07601-70 I 5
Hon. Edwin H. Stem, Chair
Criminal Practice Committee
Suite 1101, North Tower
158 Headquarters Plaza
Morristown, NJ 07960-3965
Rc: In the Mauer of Opinion 668 of the Advisory Committee on Professional
Ethics
A-415 September Term I 993
Dear Judges Pressler and Stem:
The Court recently reviewed the above opinion of the Advisory Committee on
Professional Ethic~ (ACPE). It has decided to adopt interim rules of ethical
conduct pending review of the issues by a select committee to be chaired by
yourselves. The Court believes that your Committees are most closely involved in
the varied circumstances in which the subject issues ·arise.
The ethical inquiry concerns RPC 4.2, Communication with · Person
Represented by Counsel. The RPC provide"s:
In representing a client, a lawyer shall not communicate about the subject of
the representation with ·a party the lawyer knows to be represented by another
lawyer in the matter, unless the lawyer has the consent of the other lawyer or is
authorized by law to do so.
The nub of the inquiry to the ACPE was whether the rationale of State v. CIBA. GEIGY Corp., 247 N.J. Super. 314 (App. Div. 1991 ), which dealt with ex parte
interviews of current employees of a corporate litigant, applied with equal force to
the conduct of ex parte interviews of Fonner employees of a corporate litigant:
In the course of the review of ACPE Opinion 668, as well as the appeal of the
CIBA-GEIGY matter that was later dismissed as moot, the Court came to realize
that questions exist about the CIBA-GEJG Y opinion. The Court found little
disagreement about application of the RPC to the managing agents of the
corporation, particularly those whose acts might bind the corporation, as in
entering a plea to an indictment. After that, the lines are more difficult to draw.
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REPORTS OF THE SPECIAL COMMITI' EE ON RPC 4.2
In its appeal to us, CIBA-GEl GY did not argue that the ethical restraints
applied to what it described as "fact witnesses," who were equally available to
both parties, rather only to employees "whose acts or omissions may be {imputed}
to the corporation or whose statements might constitute an admission on behalf of
the company." The CIBA-GElGY decision had precluded p ost-indictment
interviews of corporate employees "'whose acts or omissions in the matter under
inquiry are binding on the corporation (in e ffect, the corporation's "alter egos") or
imputed to the corporation for purposes of its liability, or employees implementing
the advice of counsel. All other employees may be interviewed informally."'
CIBA-GEJGY, supra, 247 N.J. Super. at 325 (quoting Niesiq, a New York Coun
of Appeals ruling). Are there relevant differences between New York and New
Jersey agency law? t:Jnder principles of New Jersey evidentiary law, a statement
by a party's agent or servant concerning a matter within the scope of the ag ency or
employment, made during the existence of the relationship, is admissible in
evidence against the party. Evid. R. 803(b)(4). Is 'such a statement "binding on" or
"imputed to" the corporation or does the RPC apply only to a very limited class of
witnesses? For example, is there a distinction to be made between witnesses who
referred to as "fact witnesses" or other types of employee-witnesses? The
hypotheticals that arose in both cases concerned what distinction, if any, might
exist between interviewing an employee whose conduct may directly impute
liability IQ a corporation (as in the case of an employee who turns a valve
discharging a hazardous substance into public waters) or an employee who
observes such conduct. Would a different analysis apply if either of the two such
witnesses were to state that the president of the company h~ been present and had
ordered that the valve be turned?
Other questions that have arisen concern when the RPC should come into play.·
For example, in CIBA-GEIGY it was not argued that the RPC came into play
before indictment. In the civil context, does the RPC ·apply before the
commencement of litigation? If the RP€ applies before the commencement of
civil litigation, how may an attorney, who must certifY that a suit is grounded in
fact and .law to avoid a initiation of fiivolous litigation, investigate a client's cla im?
Another question concerns the meaning of the·word "organization. •• The ABA
Commentary to 'RPC 4.2 (adopted after lhe Supreme Co.urt of New Jersey had
adopted the RPC) sug~ests that in the case of an organization, the 'RPC prohibits
communications by a lawyer for one party c oncerning the matter in representation
"with any other person whose act or omission in connection with that matter may
be imputed to the organization for purposes of civil or criminal liability • • • ."
Should the concept of organization be extended to· cover non-corporate
organizations, such as business proprietorships and the like? For example, if a sole
proprietorship owned a fleet pf taxi cabs,: which employees .of the taxi-cab
company would an attorney not be permitted to interview? Would it only be the
driver of the taxi involved in an accident in controversy? Would the rule be
different in the case of a taxi fleet owned by a corporation? ln other contexts, such
as a civil RICO matter or a criminal conspiracy, would a government attorney be
precluded fr9m interviewing a member of the organizatio n "whose act or omission
in connection with that m aner may be imputed to the organization" without the
consent of the attorney for the organization, and who might such an attorney be?
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APPENDJXJ
Finally, the relationship of the RPC to the Sixth-Amendment right to counsel
remains to be considered. Historically, the Sixth Amendment guarantees to the
accused the right to have counsel· present at every critical stage of the proceedings.
To whom does the Sixth Amendment right belong? What are the "critical stages"
in a criminal investigation? How should the Sixth Amendment infonn our
interpretation of the RPC?
The purpose of your assignment is to help the Cou~ detennine whether and to
what extent it might change the current formulation oft he RPC to clarify its scope
and breadth in the.c;e various contexts. The Court does not want your findings and
recommendations to be. circumscribed in· any way by present definitions of what
c onstitutes unethical or impennjssible practice. The Court wants to know what
your opinion is, as reflected in.whatever recommendation~ you make, concerning
what the public interest requires. Specifically, the Court expects that the
Committee's report will explain the relationship between the purposes of the Rule
and its applications in specific contexts, such as those of the employee who may
be a "fact witness," a "valve-turner," or an "eavesdropper" who ·.overhears
statements by another agent or employee at the . organization, Obviously the
organization is equally damaged if a non-employee sees or hears inculp atory
evidence. What policy of the RPC requires permissio.~ to interview in the case of
an employee but not in the case of an outsider? The Court understands the Rule to
embody principles of fairness in the advers~;~ry relationship designed to prevent
situations in which a represented party may be taken advantage ·of by adverse
counsel through exploiting the client alone or the making of 'improvident
sen lements, ill-advised disclosures, or unwarranted concessions.
Concemiq_g the procedures that you. will use, the Court leaves fhat up to you
entirely. Jt assumes that you would appoint representative members of each of
your committees and form a select committee for the purpose of responding to this
inquiry. You may wish to add ad hoc me~bers. The parties and amici in the
matters that have been before us should be allowed to present briefs or argument,
in your discretion. You may wish to gather the views of federal prosecutorial
officials and investigative officials who frequently confront such issues. Whether
a public hearing is appropriate is something for you to decide. The public interest ·
is the matter at issue, and the Court wishes to make sure th'at all information
relevant to that issue is presented to it.
I am sending you, under separate cover, all the parties in this matter, plus a
transcript of the oral argument before the Court, You may wish to review the
papers in the CIBA-GETGY matter. If it is at all possible, the Court would prefer
that your report would be submitted by June 30, 1994.
If you have any questions about this assignment, please let me know.
Very truly yours,
lsi Stephen' Townsend
APPENDIX 2
SUGGESTIONS FOR C HANGE
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R E PORTS OF THE SPECIAL COMMITTEE ON RPC 4.1
a. Written
Present<~ t ions
to Committee
A number of interested parties prepared written materials which wen: sent to
the C mrunittee. A summary of their recommendations are set forth herein.
l. Association of Criminal Defense Lawyers
a . Initial Submission
The Association's position is that RPC 4.2 should be construed to prohibit ex
parte communications with all current or form er corporate employees: (a) who
have managerial responsibility on behalf o f the organization, (b) whose acts or
omissions may be imputed to the organization for purposes of criminal. or civil
lia bility, or (c) whose statements constitute admissions.
The Association adv.anced the position that s ince corporations are faced with
the same liability as individuals, i.e. acts or state ments of the corporate employee
can be used to hold a corporation liable in the same manner that the acts or
state ments of a person can be used against that person, corporat ions should be
entitled to the same protections as i_n di vidua rs and the protections o f RPC 4.2
should apply. Under this interpretation an attorney could speak to those persons or
employees who simply witness an event but not to those whose participation is the
basis o f liability. In terms of when RPC 4 .2 protection arise, the A~DL argued that
the timing should not necessarily tum on the fil ing of a lawsuit or ihe issuance of
an in dictment. Jn the latter context RPC 4.2 should be interpreted to apply to a preindictment investigation.
b: Subsequent Position (Note I J
The Association argued that RPC 4.2 supplemented the Sixth Amendment right
to counsel and provides greater protection to a client's effective representation by
insuring that counse·l for adverse parties communicate with his o r her own counsel
and not with him or her directly. The Association's position was that the.
"represented party," in the corj:lorate setting, should be construed broadly. i.e.
those individuals through whom the corporatio n could be held criminally or civilly
liable.
Expanding upon at what point RPC 4 .2 should apply the ACDL afgucd that a
bright line cut-off of the filing o f an indictment or· a civil complamt was noi
logical. Rather, the ACDL, citing Judge G lasser's reasoning in U nited States v.
Hammad, 678 ·f.Supp. 397 (E.D.N.Y. 1987), limited its suppon to circumstances
where the c lient knows the case or investigation exists and
has specifically retained counsel for that case or investigation.
and the government has been put on notice that the client has retainc:c! counsel
for that case or investigation.
·S ilber Letter, supra, at 4.
The ACDL also urged the Conunittee to formulate a neutral p rocedure to
reso lve conflict-of interest problems, such as where an individual w ho can b ind a
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APPENDIX J
corporation may be represented by counsel for the corporation whose primary
obligation is to the corp9ration a~d not to the individual client.
Finally, the ACDL, responding to a suggestion made by First Assistant U.S.
Attorney Fishman that newly proposed federal rules would govern the conduct of
Department of Justice lawyers, argued that federal prosecutors should not be
exempted from New Jersey ethical rules.
2. George Grochala , Esq. [Note 2)
Mr. Grochala urged the Committee to reject the "bright line" test set forth in
PSE&G, supra, and adopt a more lenient view toward conducting ex parte
interviews of past employees. The reason urged for adopting such a position was
to assure that the adverse litigant would be able to conduct cost effective discovery
without incurring excessive costs which could bankrupt the client.
3. Commercial Union Insurance Company [Note 3]
Commercial Union is a party to numerous insurance coverage actions in which
policyholde.rs seek a declaration that insurers are obligated to defend and/or
indemnify them against claims. To de fend or prosecute properly they are required
to determine facts concerning past industrial practices. Gathering these facts
requires unfettered access to individuals, such as fanner employees of the
policyholder. At times, corporate policyholders evoke RPC 4.2 as an ethical
pretext for barring or restricting ex .parte interviews with former e mployees.
Commer~icd Union recommended that: (1) RPC 4.2 not prohibit ex parte
interviews of former employees; (2) RPC only be read to require that attorneys or
their agents: (a) make no misrepresentations during ex parte interviews, and (b) if,
during the course of an interview, an attorney or age~t becomes aware that there
is a misunderstanding, the attorney or agent must make efforts to correct the
·misunderstanding.
b. Oral Presentations in Committee
I. New Jersey County Prosecutor's Association -- Prosecutor
Esq., Ocean County Prosecutor
Dani~l
J.
Carlu~cio,
Prosecutpr Car:luccio told the Committee that prosecutors have dual identities:
they are lawyers bound by ethical rules and are representatives of the State charged
with pursuing criminal investigations. He urged adoption of a "bright-line" rule
. which would provide similar protections to . a corporation that ·an individual
receives. Thls would ass ure equ-.Iity of treatment and would not frustrate a
prosecutor's ability to conduct an inves tigation. Pre-indictment a prosecutor would
be allowed to interview any employee, without regard to level, at any time without
notice to corporate counsel. If a person w.as represented by counsel the prosecutor
would be required to let counsel know. Post-indictment a ·prosecutor would be free
to talk to a corporate employee, without notifying corporate counsel, unless the
individual interviewed is a present or former direc tor, officer or high managerial
agent who can bind the corporation. Of course, prosecutors would still be subject
to rules governing interviewing low level employees represented by counsel.
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REPORTS OF TIJE SPECIAL COMMlTIEE ON RPC 4.2
Prosecutor Carluccio also urged that if ethica l rules arc transgressed by
prosecutors that the remedy not be supp ression of evidence against the
corporation . Rather, the consequences should be on the prosecutor.
2. Paul Fishman, Esq., First Assistant U.S. Attorney [Note 4]
First Assistant U.S. Attorney Fishman informed the Committee tha t the
Department of Justice attorneys were still operating under the dictates of the
"Thomb4rgh Memorandum". [Note 5] The "Thornburgh Memorandum" declares
that Department o f Justice attorneys engaged in law enforcement activity are
exempt from the strictures of DR?-104 and State's ethical rules.
Subsequent to the "Thornburgh Memorandum" the Department of Justice
proposed regulations preempting the application of state and local law and rules
to the extent they relate to contacts by attorneys for the govenunent with
represented parties or represented persons in criminal and civil investigations and
litigation.
3. Association of Criminal Defense Lawyers- Alan Silber, Esq.
The position expressed by the ACDL at the public hearing is summarized in the
Association's.written submissions to the Committee. See pages 6-8, supra.
4. David S. Machlowitz, Esq., Assistant General Counsel, Siemens
Corporation; Vice President, New Jersey Corporate Counsel Associ;.tion
In- house lawyers take the position that they represent the corporation's
employees. Mr Machlowitz suggested that in the criminal context the scales arc
already tipped against corporations as they are already required, in many
instances, to. make many compelled disclosures to government u nder righl-toknow statutes. Thus, in as m uch as corpora te counsel represents all employees
who are part of the cOJporation, fonner and present, corporate counsel is entitled
to notice prior to communication with any employee. When there is a confl ict
between the employee's interests and the corporation's, corporate counsel advises
rhe employee that be f!T she may need independent counsel.
5. Richard K. Jeydel, Esq., Senior Vice President and General Counsel,
Kanematsu U.S.A. Inc.
Mr. Jeydel teslified that the great bulk of cases in the civil area are corporation
against corporation. If the ethical rules are changed to permit ex parte interviews
discovery practice will be fundamentally changed. Instead of reducing discovery,
as has been the case in recent years, discovery will expand.
Mr. Jeydel argued that corporations should get notice when employees are
being intenriewed, not only to restrict access, but to as~ ure the corporation, as well
as, the employee is represented.
Regarding the guidelines set forth in 668,. Mr. Jeydel said that using either
prong of the test set forth by the Court would present problems. The control group
test was not useful as determining who constituted the control group would be
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APPENDIXJ
difficult. The acts or omissions prong had si~ilar problems as the lawyer seeking
the interview would initially need to detennine where to make the inquiry.
In terms o f when the RPC should apply Mr. Jeydel argued there should be no
distinction between whether litigation had been filed or not, as the party seeking
the contact controls when to file litigation, or bring criminal charges.
Mr. Jeydel reconunended that n otice to corporate counsel be required whenever
ex p arte communications is being sought for any employee, present or fanner.
Absent notice no contact should be allowed unless the employee is the person
initiating the contact. Notice would allow corporate counsel to determine whether
there is a potential conflict between the corporation's incerest and the employee.
6. Deputy Attorney General Mark Cronin, Attorney General's Office
Mr. Cronin expressed-the opinion that until the mid 1980's; RPC 4.2 was clear,
concise, and easy to understand. In the mid 1980's, the disciplinary t:Ules were
converted to the Modd Rules for Professional Conduct and the language was not
changed in any significant respect. Howeve·r, without any discussion or
documentation, a comment to the rule was written stating that the rule meant that
an attorney could n ot speak to any· employee whose acts or statements were
attributable to the company for p urposes of determining that ·company's liability.
This was a 180 degree change in the meaning of the ru Ie.
An intervening factor occurred in the late 1960's-early 1970's ·when the
evidence rules were changed in virtually every jurisdiction so that hearsay
statements. rqade by any employee, not just by certain employees who spoke for a
company, could be used against that company. Shortly therea fte r, the Model Rule
began to be interpreted differently. The new interpretation stated, in effect, that
since the courts and legislatures have declared that hearsay statements of che
employee may be admitted against the employer, it would now be unethical for
attorneys to obtain those statements. ~r. Cronin criticized this result bec~use it
impliedly repealed the evidence rule and rejects the public policy of New Jersey
as codified by the Legislature and Supreme Court. It also codifies the policy which
the Sup ...eme Court and Legislature have consistently rejected whenever they have
studied this issue. Most who interpret the rule so that it would inhibit the discovery
of information o n an ex parte or informal basis fly in the face of a line ofcases and
legislative pronouncements dating back to the 1960's .
.Mr. Cronin also testified that RPC 1.13 defines the role of. corporate· counsel,
and that it specifically provides that an attorney who represents an organization
does not represent the Board of Directors, the officers, the employees, or agents.
In the criminal context, it is an unwaivable conflict to represent a ~efendant and a
witness. Where a corporation is a target of a criminal investigation, every
employee is a potential witness. Corporate counsel does not, by virtue of RPC
1.13, represent those employees. In addition, because it is a· conflict, an attorney
cannot r epresent those employees without risking his or her license. If one accepts
that the attpmey-client relationship does not eltist with the employee, RPC 4.2
does not apply to the interview of that witness. T he pro per rule is RPC 4.3, which
has built-in protections that protect the person a lawyer is speaking to.
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REPORTS OF THE SPECIAL COMMITTEE ON RPC 4.2
Mr. Cronin also pointed out that RPC 4.2 does not protect any person who may
bl! effected by the disclosure of certain information. He also pointed out that RPC
3.4(() states that the employer, or attorney representing the employer, can request
that an employee voluntarily refrain from discussing the matter with opposing
counsel.
Mr. Cronin recommended that the rule be taken at its face value. "Party" should
mean "the person to whom an attorney is talking;" "represented" should mean
"that the person has a lawyer;" and "matter" should mean "has an acti~n pending".
'When a corporation is involved, an attorney would not be .able to speak to those
members of the corporation who actually have responsibility for directing the .
litigation.
7. Bennett Zurofsky, Esq. , Employee Lawyers Association
·t
I
Mr. Zurofsky testified that corporations are separate entities from their
employees and that this separation is reflected in the ethical rules. ~PC 1.13 states
that a lawyer employed by a!l organization represents the organization, as distinct
from its directors, officers, employees, members, shareholders, or other
consti{tlents. The rule also lists circumstances where the attorney has a duty to
breach the confidence of those. people where it is in the best interests of the
corporation to do so, even if that person is the person who directs the litigation .
Mr. Zurofsky testified that when interpreting RPC 4.2, one should also refer to
RPC 1.13, and that the definitions ofboth should be exactly the same. He endorsed
the Supreme Court's definition of the control group, which is "tllose employees of
the organization entrusted with the management of the case or matier in question".
Mr. Zurofsky fu'rtiler defined matter in question as "the legal matt~r·". as opposed
to management of the underlying matter, such as the valve opening, etc., which
gives rise to the dispute. He also believed that the rule did not apply to former
employees of the corporation. Mr. Zurofsky's basic thrust was that a corporation
should not receive more protection than an individual with an acknowledged right
to counsel.
'i'
8. Rich Crooke~, Esq.
Mr. Crooker advocated a "bright line rule" where there would be no application
of RPC 4.2 ,to former employees of a corporation. He felt that !)doptiori of a
narrower rule would th\vart truth finding. In addition, cost and efficiency concerns
~ould be better served by a bright line rule, whiCh would lead to less fonnality in
gathering information, and also to less filtering of the truth. A broad notice
requirement would lead to more depositions, which would greatly increase the
cost of information gathering related to litigation. The alternative to his suggestion
would provide an incentive for over· reaching by corporate counseL
Note 1: Subsequent to the public hearing Alan Silber, Esq., in a letter to the
Cpmmittee dated June I 6, 1994, set forth further elaboration of the ACDL's
position response to some arguments made at the public hearing.
in
Note 2: The position of Mr. Grochala was set forth in a letter to the Committee
dated May 2, 1994.
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Note 3: The position of Commercial Union Insurance Company was set forth
in a letter to the Comm ittee by James A. Young, Esq. dated May 20, 1994.
Note 4: Due to a malfunctioning of recording equipment lhe testimony o f Mr.
Fishman and Mr. Silber was lost. A summary of Mr. Fishman's testimony was
prepared using hand-written notes taken at the hearing. Since Mr. Silber's
testimony was largely contained in written materials presented to the Committee,
no additional summary was prepared.
Note 5: Memorandwn to All Justice .Department Litigators From Dick
Thornburgh, Attorney General, Ju':le 8, I 989 ("Thornburgh Memorandum").
NOTIC ES TO THE BAR
Rule Barring Cqntact With Litigation Control Group Represented by Counsel
Communications with Persons Represented by Counsel
of
After the publication of the initial rcpqrt· the Special Committee o n RI'C 4 .2.
the Supreme Court re ceived comments that led to the reconstitution of -the
Committee.. On May 6, 1996, the Special Committee fi ied a supplemental report
with the Court, recommending addi.tional changes io RPC 4.2 and RPC I . l 3. The
Court has adopted the amendment to RPC 4.3 that was recommended by the
Special Cor:nmittee in the initial report.
The supplemental report of the Special Committee is being published with this
Notice and the Court's Order adopting the amendments to the Rules of
Professional Conduct. Please note that the amendments take effect S eptember I,
1996.
Stephen W. Townsend, Esquire
C lerk of the Supreme Court
July 15, 1996
SUPREME COURT OF NEW JERSEY
IT IS ORDERED that the fo llowing amendmcf1IS to the Rules of Professional
Conduct are hereby adopted, to be effective September 1, 1996:
1.13
.
4.2
4.3
For the Court:
Acting Chief Justice
Dated: June 28, 1996
RPC 1.13 Organization as the C lient
(a) A lawyer employed or retained to represent an organization represents the
organization as distinct from its directors, officers, employees, members,
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REPORTS OF THE SPECIAL COMMITTEE ON RPC 4.2
shareholders or other constituents. For the purposes of RPC 4.2 and 4.3, however,
th.e organization's lawyer shall be deemed to represent not only the organizational
emiry but also the members of its litigation control group. Members of the
litigation control group shall be deemed to include current agents and employees
responsible for, or significantly involved in, the detennination of the
organization's legal position in the matter whether or not in litigation, provided,
however, that "significant involvement" requires involvement greater, and other
than, the supplying of factual information or data respecting the maner. Former
agents and employees who were members of the litigation control group shall
presumptively be deemed to be represented in the matter by the organization's
lawyer but may at any time disavow said representation.
(b) .. . No Change
(c) ... No Change
(d) ... No C hange
(e) .. . No Change
· (f) For purposes of this rule, orgamzation includes any corporation,
partnership, association, joint stock company, union,, trust, pension fund,
unincorpor..1ted association, proprietorship or other business entity, state or local
government or political subdivision thereof, or non-profit organization.
Note: Adopted September l 0, 1984, tQ be effective immediately; amended June
28, 1996, to be effective September I, 1996. RPC 4 .2 Communication with Person
Represented by Counsel
.
.
In representing a client, a lawyer shall not communicat€·about the subject of
the _representation with a (partyJ person the lawyer knows, or by the exercise of
reasonable diligence should know, to be represented by another lawyer in the
matter, incl~ding members of an organization's litigation control group as defined
by RPC 1.13, unless the lawyer has the consent of the other lawyer, or is
authorized by law to do so[.], or unless the sole propose of the communication is
to ascertain whether the person is in fact represented. Reasonable diligence shall
include, but not be limited to, a specific inquiry of the person as to whether that
person is represented by counsel. Nothing in this rule shall, however, precludt;; a
lawyer from counseling or representing a member or forrner member of an·
organization's litigation control group who seeks independent legal advice.
Note: Adopted September I 0, 1984, to be effective immediately; amended June
28, 1996, to be effective September 1, 1996.
RPC 4.3 Dealing with Unrepresented Person; Employee of Organization
In dealing on behalfof a client with a person who is not represented by counsel,
a lawyer shaiJ not state or imply that the lawyer is disinterested. When the lawyer
knows or reasonably should know that the unrepresented person misunderstands
the lawyer's role in the matter, the lawyer shall make reasonable efforts to' correct
the misunderstanding. If ·the person is a ·director, officer, employee, member,
shareholder or other constituent of an organization concerned with the subj ect of
the lawyer's representation but not a person defined by RPC 1.13(a), the lawyer
shall also ascertain by reasonable diligence whether the person is actually
represented by the organization's attorney pursuant to RPC 1.13(e) or who has a
right to such representation, the lawyer shall make known to the person that
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APPENDIXJ
insofar as the lawyer understands, the person is not being represented by the
organization's attorney.
Note: Adopted September l 0, 1984, to be effective immediately; amended June
28, 1996, to be effective September I, 1996.
SUPPLEMENTAL REPORT
SPECIAL SUPREME COURT COMMITTEE ON R..P.C. 4.2
May 6, 1996 Background
On February 27, 1995 the Special Committee submitted its Report to the
Supreme Court for consideration. The Supreme Court published che Report for
comments. Sec Report of the Special Supreme Court Committee on R.P.C. ·4 .2,
139 N.J.L.J. 1161, 1193 (March 20, 1995). The Court received a .number of
comments to the Committee's Report. These comments were·referred b~ck co the
Committee. The Committee.c(lnsidered all comments received by the Court and is
recommending further.changes to R.P.C. 1.13 and 4.2, set forth hereafter, as a
supplement to the Committee's original Report. No further amendment is being
propo~ed to R.~.C. 4.3
R.P.C. 1.13 Organization as the Client
(a) A lawyer employed or retained to represenr an organization represe nts the
organization as distinct from its directors, employees, members, shareholders-or
other constituents. For the purposes of RPC 4.2 and 4.3, howeve r,. the
organization's lawy~r shall be deemed to represent not only the organizational
entity but also the members of its litigation control group. Members of the
litigation control group shall be deemed to include current agents and employees
responsible for, or significantly involved in, the detennination of the
organization's legal position in the matter whether or noc in litigation, provided,
· however, that "significant involvement" requires involvement greater, and other
than, the supplying of factual information or. data respecting the matter. Former
agents and -employees who were members of the litigation control group shall
presumptively be deemed to be represenied in the maner by the organization's
lawyer but may at any time disavow said representation.
(b) ... No Change
(c) ... No Change
(d) ... No Change
(e) ... No Change
(f) For purposes orthis rule organization includes ·any corporation, partnership,
association, joint stock company, union, trust, pension fun<L unincorporated
association, proprietorship or other business entity, state or local government or
political subdivision thereof, or non-profit organization.
RPC 4.2 Communication with Person Represented by Counsel.
In representing a client, a lawyer shall not communicate about the subject of
the representation with a [party] person the lawyer knows, or by the exerc ise o f
reasonable diligence should know, to be represented by another lawyer in the
matter, including members of an organization's litigation control group as defined
by RPC 1. 13, unless the lawyer has the consent of the other lawyer, or is
authorized by law to do so{.J, or unless the sole purpose of the communication is
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REPORTS OF THE SPI<:CIAL COMMITTEE ON RPC 4.2
to ascertain whether the person is in fact represented. Reasonable diligence shall
include, but not b e limited to, a specific inquiry of the person as to whether that
person is represented by counsel. Nothing in this rule shall, however, preclude a
lawyer from counselin g or representing a member or former member of an
organization's litigation control group who seeks independent legal advic~ .
COMMENT:
In its initial recommendation, the Committee proposed that fonne r employees
who were members of the organization's litigation control group should be
regarded as represented by the organization's attorney for purposes o f R.P.C. 4.2
and 4.3. The Commitwe has received a g reat many objections to the inclusion of
fo nner employees.
The Committee continues to be of the view that, at least p resumptively,
inclusion of fanner employees is appropriate. While the Committee appreciates
the divergent view of the objecto rs, it nevertheless points out that its, definition of
those who arc represented by the organization's attorney is considerably narrower
than either the American Bar Association or the proposed New Jersey Bar
Association rule. Therefo re, the Committee starts off insulating a much smaller
group than the other proposals. Consequently, including former employees in the
litigation contro l group still leaves an appreciably smaller number of people who
are insulated because they are deemed to be the c lients of the entity's attorney.
T he Committee is, however, concemei:l that categorizing·Jonner members of
the control group congruently with current members of the control group may
raise unintended and inappropriate difficulties. First, the Committee is-convinced ·
that a member o f a control g roup, whether current or former, obviously h~s the
rig ht to seek his or her own representation in the matter and must be free to do so,
and attorneys must be free to represent them. The potential for a conflict of interest
between the entity and an individual member of the control g roup is too significant
not to take into account. This has been spe cifically provided for by the pro(>Qse d
last sentence of R.P.C. 4.2.
Moreover, while the Committee recognizes that ordinarily former members of
the control group are friendly to the continuing interests of the organizati ~n as the
organization defines it, that is not always the case. Some former members may s~e
the mselves as whistle-blowers or as otherwise in a position of conflict with the
org anization. There may very well be fiduciary privileges and obligations as
between and among former and' current members of the control group and the
organization militating, among themselves against disclosing confidences. The
Committee has conc luded, however, that those obligations must remain matters as
among the control group members and the organi-Zation and should not
necessarily, unless substantive law otherwise requires, prevent the attorney for a n
advcrsarial party frorn counseling or interviewing a former: employee or imping \=
on the right of the former employee who wishes not only to seek indepenaent
adv ice, but also to make himself available in whichever way he may choose to
interests hostile to the corporation.
For these reasons, the Committee now ·proposes that the fo rmer members of the
litigation control group be deemed presumptively represented by the organization;
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APPENDIX J
but that they have the right to disavow that representatio n. Accordingly, and
atto rney making the communications pursuant to R. P.C. 4.3 to determine
representation may inquire as to whether the former employee disavows
organizational rep resentatio n or not.
O rdinarily a criminal matter does not arise until a comp laint or indictment has
been filed or warrant has been issued, cf. State v. Ciba-Geigy Corporation, 24 7
N.J. 'Super. 314, 325-326 (A pp. D iv. I 991 ), and, as noted above, our defi nition of
litigation control group is narrow and does not include people who merely have
factual in formation or data respecting the matter... The subject matter o f a
potential criminal cause may, however, be comprehended within a pending civil
matter, resulting in the possibility that the subject of the representation will be the
same in both. Government lawyers should be a ware of this possibility.
In inquiring as to the fact of representa tion, as required _by R.P.C. 4 .2 , an
attorney might wish to consult the script sugges ted by In re Prudential Insurance
Com pany o ( America Sa les Practices Litigation, 911 F.S upp. 148, 152 footnote 5
(D.N.J. 1995) and In re Environmental Ins urance Declaratory Judgment Actions,
252 N.J . Super. 510, 523· 524 (Law Div. 199 1).
•
Except for the ·changes noted above, the Committee adheres to its origina l
report for
., the reasons therein set forth .
Com mittee Membership
Sylvia B. Press ler, J.A. D.
Edwin H. Stem, J.A.D .
David H . Ben-Asher, E sq.
George C. Jones, Esq.
Donald A. Klein, Esq.
Jack
M. Sabatino, Esq.
Barbara Ann Sellinger, Esq.
Debra L. Stone, Esq.
~haron
B. Ransavage, Esq .
M. Karen Thompson, Esq .
Alan Zeg as, Esq.
Staff: Josep h J. Barraco, Esq.
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124
.
.
SUPPLEMENTAL REPORT
SPECIAL SUPRE:ME COURT COl\1MITTEE
•,,
ON
R.P.C. 4.2
Afay 6, 1996.
125
Background
On February 27, 1995 the Special
~ommittee
submitted its Report to the Supreme Court
for consideration. The Supreme Court published the Report for comments. See Report of the
Special S upreme Court Commillee on R.P.C. 4.2,
13~
N.J.L.J . 1161, 1193 (March 20,
1~95).
The Court received a munber of comments to the Committee 's Report. These comments w ere
referred back to the Committee. The-Committee considered all comments received by the Court
and is recommending further changes to R.P .C . I. !3 and 4.2, set forth hereafter,
as a
supplement to the Committee' s original Report. No further amendment' is being proposed to
R.P.C. 4.3.
. ..
1
126
RPC I. U
(a}
Organi7.ation as the Client
A lawyer employed or retained to represent an organization represents the
organization as distinct from its directors. officers, employees, members, shareholders or other
constituents. EQ.uhe purposes of RPC 4.2 and 4 .3, however. the organization's Iawver shall be
deemed to represent not only the organizational entity but al so the members of its liti gation
control grOt! P- Members of the litigation control grou p shall be dee med to include current
a gents and em ployees responsible for. or significantl y involved in. the determination of the
organiz.ation's legal pos.jtion in the matter whether or not in liti gation. provided. however. that
"~ i gnificant
involvement"
requires invol vement greater. and .other than. the supplying Qf
factual infonnation or data ·respecting the matt~r.
Former agents and employees who were
......
'\
members of the litigation control group shall presum ptively be deemed to be represented in the
matter by the organizatiQn's lawyer but may at any time disavow said representation.
(b) ... No Change
(ill ... No Change
(d) ... No Change
~
!1)
... No Change
For purpost:::; of this rule "org~:~,nizalion" indudes ~my corpor<tlion. partnership.
association. joint stock company. union. trust. pension fund. unincorporated · associatiOI.h
proprietorship or other business entity. state or local govemment or political subdivision
thereof. or non-profit organization.
2
127
•
I
RPC 4.2
Communication with Person R epre sent~d hy Counsel
In representing a client. a lawyer shall not communicate about the subject of the
representation with a [party] person the lawyer knows.J>r by the
I'
I
e~G,ise
of
rea_sp~
dili gence should knoJY..,. to be represented by ano ther lawyer in the matter,_ including members
of an org ani zatio n's fuigation control grou p a s defiued bv RPC 1.13. unless the lawyer has the
c o nsent of the othe-r lawyer.. or is authorized by law to do so[.]. or unless the sole· purpose of
the c o mmunication is to as_pertain whether the person is in fact repr<:< sented.
Ik..asonable
d ili gence shaH inc lude. but not be limited to. a s pecific inqui ry of the person as to whether that
person is represented by counsel.
Nothing in this rule sh_all. however. preclude a lawye_r fro m
counseljng or representing a member or former member of an Qrganization's litigation control
group who seeks
ind~pendent
legal advice .
3
..
128
coMMENT:
In its initial recommendation, the Committee proposed that former employees who
were members of the organization's litigation control group should be regarded as represented
by the organization's attorney for purposes of R .P.C. 4.2 and 4 .3. The Committee has received
a gn::at many objections to the:: inclu~ion of forme::r e::mpluyees.
The Committee continues to be of the view that, at least presumptively, inclusion of
former employees is appropriate. While the Committee appreciates the divergent view of the
objectors, it nevertheless points out that its definition of those . who arc represented by the
organization's attorney is considerably narrower than either the American Bar Association or
the proposed New Jersey Bar Association rule. Therefore, the Committee starts off insulating
a much smaller group than the .o ther proposals.
Consequently,'· including former employees
in the litigation control group still leaves an appreciably smalJer number of people who
ar~
insulated because they are deemed to be'the clients of the entity's attorney.
· The Committee is, however, concerned thafcategori?.ing former rnemhers of the control
•
group congmenrly with current members of the control group may raise unintended and
inappropriate difficu'ltie~. First, the Committee
is convinced
that a member of a control group,
whether current or former. obviously has· the right to seek his or her own representation in·.the
matter and must be free
to do so, and attomeys must be free to represent them.
The potential
for a conflict of interest between the entity and an individual member of the control group is too
significant not to take into account. This has been specifically provided for by the proposed last
sentence of R.P.C. 4.2.
4
129
Moreover, while the Committee recognizes that ordinarily former memhers of the
contro l group are friendly to the continuing interests of the organization as the organization
defines it, that is not always the case.
Some fonner members may sec themselves as
whistle-blowers or as otherwise in a position of conflict with the organization.
There
m~y
very
well be fiduciary privileges and obligations as between and among former and current members
o f the control group and the organization militating, among the mselves against disclosing
confidences.
The Committee has concluded, ho¥:'ever, that those obligations must remain
matters as among the control group members and the organization and should not
necessarily~
unless substantive law otherwise requires, prevent the attorney for an :1dvcrsarial party from
counseiing or interviewing a former employee or impinge on the right of the fonner employee
who wishes not only to seek independent advice, but also to make himself available m
whichever way he
may choose to interests hostile to the corporation.
For these reasons, the Committee now proposes that the former members of the litigatior
control' group be deemed presu mptively represented by the organization. but that they have the
rig ht to disavow that representation.
Accordingly, an attorney making the communicatiom
pursuant to R.P.C. 4 .3 to determine representation may ·tnqutre as to whether the
forme~
employee disavows organizational representation or not.
Ordinarily a c riminal matter does not arise until a complaint or indictment has· been filec'
or warrant has issued, cf. State v. Cjba-Geigy Corporation, 247 N.J. Super. 314, 325-326 (App
Div. 1991 ), and, as noted above, our definition o f " litigation control group" is narrow and
doc~
not include people who merely have "fach1al information or data respecting the matter. .. " Thf
5
130
suhject matter of a potential criminal cause may, however, he comprehended within a pending
civil matter, resulting in the possibility that the subject of the representation will be the same
in .both. Government lawyers should be aware of this possibility.
In inqu iring as to the fact of representation, as required by R.P.C : 4.2. an attorney might
wish to c~nsult the .,script" suggested by l!.Lre PJudcntial Insurance Com pany of America.Sales
Practices Litigation, 911 [. Supp. 148, 152 footnote 5 (D.N.J. 1995) and In re Environmental
Insurance Decla ratory Jud gment Actions, 252 N.J. Super. 510, 523-524 (Law Di v. 1991).
Exce pt for the changes noted above, the Committee adher~s to its original report for the
reasons therein set forth .
Col111Tlittee Me-mbe1·ship
Sylvia B. Pressler, J.A .D .,
Edwin H. Stem, J.A.D.
David H . Ben-Asher; Esq.
George C. Jones, Esq.
Donald A. Klein, Esq.
Jack M. Sabatino, Esq.
Barbara Arm Sellinger, Esq.
Debra L. Stone, Esq.
Sharon B. Ransavage, Esq.
M.
Kar~n
Thompson, Esq.
Alan Zegas, Esq.
Staff: .Joseph J. B a rraco, Esq.
6
131
Page 3
1ST STORY of Le v e l 1 print ed in FULL f ormat .
Copyright 1996 Ame r ican Lawyer Newspape rs Group, Inc.
New Jersey Law Journal
1 t.--f ~-
1J _
5
L . J" . $> G
( 7/;~Yj; /} ·
1996
SECTION: NOTICES TO THE BAR; Pg. 86
LENGTH : 2 1 2 1 words
~~ADLINE :
Rule Barring Contact Wi tll Litigation Cont r ol Group Re present e d by
Couns.el
BODY:
Communi c a t ions with Perso n s
Represe n t ed by Co un s el·
.
(
After the publication o f t he initial report o f t h e Special Committee on RPC
4.2 , the Supreme Court recei ved comme n t s t hat led t o the r e constitution o f the
Committee. On May 6, 1996, t he Special Committe e filed a s upplement a l r e port
with the Court, r e commending additio n al change s to RPC 4 .2 and RPC 1 . 13 . The
Court has adopted those a me n d ments as recommend ed
the Special Co mmittee .
In
addition, the Co u r t has a d o p ted the amendment to RPC 4.3 t hat was r e c omme nded b y
t he Special Committee in it~ ini tial report.
by
The supplement~·! report of the Special Commi t t e e is b e i n g publishe d .with thi s
Notice and the Court's Order adopting the a me n d me n t s to the Rules of
Professional Conduct.
Plea s e note t h a t the a mendments t ake e ffect S e p t effiber 1,
1996 .
St e phen W. Towns end, E squi're
Cl e rk of t he Supreme Court
July 15, 1996
SUPREME COURT OF NEW J ERSEY
I
IT I S ORDERED that t h e following amendment s to the Rules of Prof e s sional
Conduc t a r e h ereby adopted, · to be effective September 1, 1996:
1.13
4.2
4.3
For the Court:
Acting Chief Justice
Da t e d : June 28,
1 9 96
RPC 1.13 Organization as the Client
(a) A l awyer employed or retained to r epresent an organization represents th
a s distinct .from its directors, officers, employees, members;
~rganization
132
Page4
New Jersey Law Journal. July 15, 1996
shareholders or other consti t uents . For the purposes o f RPC 4.2 and 4 .3 ,
however, t he organ i zati on 's l a wyer shall b e deemed to represent not o n l y the
organizat i onal e n tity but also the members o f its litigat ion control g r o up .
Members o f the litigat ion control group shall be deemed to include c u rre n t
agents and employees responsible for, o r significantly involved in, the
determinat i on of the organization' s legal position in the ma tter whether or n o t
in litigat i on, provided, howev er, t h a t > significant involveme nt" requires
involvement greater, and other than, the supplying of factual info rmation or
data respect ing the ma tter.
Former a gents an d emplo yees who we r e members o f the
litigation c on trol group s hall presu mptively b e d e emed to b e r e presented in . the
matter by t he organizat ion ' s lawyer b u t may at any time disavow .sa i d
r epresentatio n .
(b)
No Change
(c )
No Change
{d )
.
No Cha nge
(e)
No Change
{f ) For purpos es o f this rule > organizatio~ includes any corporat i on,
p a rtne rship, association , joint stock company, union , t rust·, pension f und,
uninco rporated a s s o ciation , proprietorship o r other business . entit y , s t at e or
l ocal government o r p o litical s ubdiv isio n thereof , or n on-profit organizat ion .
No te: Adopted September 10 , 1984 , to be effective immediately ; amended J une
28, 1 996, t o be effe ctive September 1, 1996 . RPC 4.2 Communication wi th Pe r son
Repres ented by Counsel
. In r e presenting a c lient, a lawyer shall not. communicat.e about the sub j ec t of
the representation with a [party] person the lawyer knows, ·o r by the exerci se of
·reasonable d i ligence should know,· to be represented by anothe r lawyer. in _t he
matter , including members of an organization' s litigation c o ntro l group as
defined by RPC 1. 13 . unless the l awyer has the c o n s ent of the o ther lawyer ,· o r
is authorized by law to do so[.}, or unless the s o le purpose of the
communicati on is to ascertain whether the person is in fact repres ented.
·Reasonable diligence· shall include, but not be limited to, a spec i f i c inquiry of
the person as to whether that person i s represented by counsel. Not~ing in thi s
rule shall , however, preclude a lawyer from counseling or representing a member
or former member of an organization's litigation control group who seeks
independent legal adv ice .
Note : Adop t ed September 10, 1984, to b e effectiv e immediately; amended June
28, 1996, to be effective September l , 1 9 96 .
RPC 4.3 Dealing with Unrepresented Person;
Employe~
of Organization
In dealing on behalf of a client with a person who is not represented by
counsel , a lawyer shall not state or imply that the lawyer i s disinterested .
When the lawyer knows or reasonably should know that the unrepre~ented person
misunderstands the lawyer's role in the matter, t he lawyer shall make reasonabl e
efforts to corre c t the· misunder standing. I f the person is a director, officer,
employee, member, s hareholder or .other cons t ituent of an organization concer n ed
with the .subject of the lawyer's representation but not a person defined b y
·RPC 1.13 (a}, the lawyer ·s hall . als o . ascertain by reasonable diligence. whether the
person is actually represented by the organization's attorney pursuant. to RPC
1.13(e) or who has a right to such representation on request, and, if the person
is not so repres ented or entitled to representation, the lawyer shall make known
133
Page 5
New Jersey Law Journal, July 15, 1996
to the person t hat insofar as the lawyer understands , the person i s n o t being
represented by the org aniza tion ' s attorney .
Note: Adopted September 10, 1984, to be effective immed iately; amended June
28, 1996, to be e ff ective September 1, 199 6 .
SUPPLEMENTAL REPORT
SPECIAL SUPREME COURT COMMITTEE ON R . P.C. 4.2
May 6, 1996 Ba ckground
On February 27, 1995 the Special Committee submitted its Report to .the
Supreme Court for consideration.
The Supreme Court published the Report for
comments. See Re port of the Special Supreme Court Committee o n R. P.C. 4.2, 139
N.J.L.J. 1161, 1193 (March 20, 1995). The Court received a number of comments
to the Commi ttees_ Report. These c omments were referred back t o the Committee.
The Commi ttee cons idered all comments received by the Court and is recommending ·
further changes to R.P.C. 1 .1 3 and 4 .2, set forth hereafter, a s a s uppleme nt to
the Committees o r iginal Report.
No f urther amendment is be~ng prop osed to
R.P . C. 4.3 . RPC 1.13 Organization as the Client
(a) A lawye r e mp loyed or r etained to represent an organization represents the
organization as distinct from its direct·ors ~ office_r s •. employees, members,
s hareholders or other constituents.
For the purposes of RPC 4.2 and 4.3,
however, the organization's lawyer shall be deemed t o represent not only the
o rganizational entity but also the ~e mbers o f its litigation control group.
Members of the litigation control group shall be deemed to include current
agents and employees,~esponsible for, o r sig ni fi cantl y involved in, the
determination of the organ ization's legal position in the matte r whether o r not
in litigation, provided, however, that > significant .invql v ement " r equires
involvement g reater, and o t her tha n, the suppl yi ng of factu a l information .or
data re specting the matter.
Fo rmer agents and employees who were members of the
· litigation control group sha ll presumptively b e d eemed t o b e r ep res ented in the
matter by the organization's lawyer but may at any time disa·vow said
representation.
(b)
No Change
(c)
No Change
(d)
No Change
(e)
No Change
(f) For purposes of this rule > organization includ es any corporation.
partnership, association, joint stock company, union, trust, pension fund,
unincorporated association, proprietorship -or other business entity, state o r ·
local government o r political subdivision thereof, or non - profit organizati~n.
RPC 4.2 Communication with Person Represented · by Couns el
In r epr es enting a cli~nt, a lawyer sha l:l not ;;ommunicate about the subject of
the represe.ntation with a {partyJ person the lawyer k nows, or b y the exercise of
reasonable diligence should know , to be rep resented by another lawyer in the
matter, including members of an organization 's litigation control group as
defined by RPC 1.13, unless the lawyer has t he c ons ent o f the other lawye r or is
authorized by law to do so[ . ), or unless the sole purpose of the communic~t i on
is to ascertain whether t he person is in fact represented ~
Reas onable dilige nce
shall include, but not be limi ted to, a specific inquiry of the person as to
whether that person is represented by counsel. Nothing in this rule shall,
..
134
Page 6
New Jersey Law Journal , July 15, 1996
howe ver, p r e c lude a l a wyer f r om couns eling or repre s e n t ing a membe r or f o rme r
member of a n organi z a t i on 's l i t i g ation control group who seeks i n depe n de nt l e gal
advice .
COMMENT:
I n i ts initial r e c ommendation , t he commi t t e e propo s e d that f ormer e mploye e s
who were me mbers of the organizat i o n's ·li t i g a t ion contro l group should be
r e g a r d ed a s r e p re sented b y the o r g a n i zation's attor ne y f o r purpos e s of R.P . C .
4.2 a nd 4. 3 . The Committee has r e c eived a g r e at ma ny o b j ecti o n s to the
inclus ion o f f ormer employees.
Th e Commi t t e e cont inues to be of the view t h a t, at l e a st p r e s umptively ,
inclus i o n o f f o rmer empl o yees i s appropria t e. Whi le t h e Co mmit t e e a pprec ia t es
the d i v e rgent v i e w of t he obj ect ors , i t neve r t h e l ess p o i n t s out tha t its .
de f i n i t ion o f t h o se who a r e represen ted by t h e organizat i on's a t t o rney i s
conside r ably n a rrower than either t h e American Bar Asso c i ation o r the prop o s e d
New J e r s e y Ba r As s ocia tion rule . Therefore, t h e Committe e starts o ff ins u l a t ing
a much s mall e r g r oup than the othe r proposals.
Consequently, including f orme r
e mploy e e s in the l i t iga t ion c ontrol g r oup s t ill leaves an a ppreciably smalle r
number of people who are i n s ul ated b e c a u s e they a re dee me d to b e t h e client s o f
t-h e ent i ty's att o rney.
The Committee i s , however, c o nce r n e d that c a t e gorizing former membe rs o f t h e
c ontrol g roup congrue ntly with current me mbers o f the cont rol group may rai s e
unintended and i n appropri a t e d ifficult i e s . . First, the' · ~ommitt ee i s c onvinc e d
t h a t a member of a c o ntrol group, whe ther c urrent or f orme r , obviously has t he
r i g ht to s e e k his o r her own r e p r es entat i on i~ t h e matter a nd must be free to d o
s o , a nd a t t o rneys mus t be f r e e t o repre s e n t them. The p o t e ntial for a conflict
o f inter e s t betwe en t h e ent i ty a nd an i nd ividual member of the cont r ol group is
too s ignific ant not t o take int o account . This h a s been s p ecifically p rovided
for by the p r opos ed last sente n c e of R . P.C . 4.2 .
Mo r eover , while the Commit t e e r ecogni ze s that o r d inar i l y former membe rs o f
the control group are friendly t o the cont inuing interest s o( the orga n ization
as the organization de f ines it, that is n o t a lways the case. Some f orme r
membe rs may s e e thems elves as whi s tle-blo we r s or a s otherwi se in a pos ition o f
conflict wi th the organi z ation. There ma y very wel l be fid u c i a ry privileges a nd
obli g a t ions a s between and among f ormer and c u rrent me mbers of the c ontr ol g r oup
and the organization militating , a mong themse lves a g a i nst disclosing
confidences . ·The Committ e e has c o n c luded, h o weve r , that thos e obligatio n s mus t
remain matte r s as among t he contro l group members and the organization a n d
should n o t nec e s s a rily, unless ·substantive l a w othe r wi se r e quires, prevent the
attorne y for a n advers a r ial party f rom counse ling or inte-rvi e wing a f o r mer
employe e or impinge on t h e right o f the forme r employe e who wi s hes not on ly t o
seek independent a dvice, b ut also t o make himself available in whichev e r wa y h e
may choose to inte rests hos tile t o the corporation.
For thes e r easo n s , the Committee now propo s e s that the former membe r s o f t h e
litigation c o ntrol g r oup b e deemed pre sump tively repres e nted by the
o r g anization, but that they have the right t o disavow that r e presentation .
Acco rdingly , an attorney making the communica t ions pursuant to R . P . C . 4 : 3 · t o
determine representation may inquire a s t o' whether t h e forme r employee disavows
organizatio n al represe ntation or not.
135
Page 7
New Jersey Law Journal, July 15, 1996
Ordinarily a criminal matter doe s not arise until a complaint o r indictment
has bee n fi l ed or warrant has i s sued, cf. State v . Ciba - Geigy Corporation, 2 4 7
N.J. Super. 314, 325 -326 (App. Div. 1991), and, a s not ed above, our definition
of > litigat ion c ontrol group is narrow and does not inc lude peoplP. who me rely
have > factual informat i on or data r e specting the matt er .
. The subject
matter of a potential criminal c ause ma y , however, be comprehended within a
pend ing civil matter, resulting in the possibility that the s ubject of the
representation wi ll b e the same in both. Go vernment lawyers should be awa re of
thi s possibility .
In inquiring as to the f a c t of repre sentation, as required by R.P . C. 4 . 2, an
a ttorney might wish to c onsult the > s c ript sugge sted by In re Prudential
Insurance Company of Ame rica Sales Pra c tices Litigation, 911 F. Supp ,. 1 4 8 , 1 5 2
footn o te S {D.N.J. 1995) ·and In r e En vi ronme ntal Insurance Declaratory Judgme n t
Actions, 2 5 2 N.J. S uper. 510, 523 ·· 524 (Law Di v. 1991) .
Except for the c hange s not ed above, the Commi t tee adheres to its original
report for the. reasons t h e rein set forth.
Committee Membership .
Sylvia B. Pressler, J.A.D .
Edwin H. Stern, J.A.D.
David H. Ben - Asher, Esq.
George C. Jones, Esq.
Donald A. Kle in, Esq.
Jack M. Sabatino •. Es ~ .
Barbara Ann Sellinger, Esq.
Debra L. Stone, Esq. ·
Sharon B. Ransavage, Esq.
M. , Karen Thompson, Esq.
Alan Zegas, Esq.
Staff: Joseph J. _Barraco, Esq .
LANGUAGE: ENGLISH
LOJ\D - DATE' July 29,
1996
4
136
ROBERT KLIER, SR. AND MARIANNE KLIER, HUSBAND AND WIFE, PLAINTIFFS-APPELLANTS, v.
SORDONI SKANSKA CONSTRUCTION COMPANY, A DELAWARE CORPORATION, A.G.
MAZZOCCHI, INC. (FOR DISCOVERY PURPOSES ONLY), THE TAUBMAN COMPANY (FOR
DISCOVERY PURPOSES ONLY), THE PRUDENTIAL REALTY COMPANY (FOR DISCOVERY
PURPOSES ONLY), HOBBS & BLACK ASSOCIATES (FOR DISCOVERY PURPOSES ONLY) AND
SHORT HILLS ASSOCIATES (FOR DISCOVERY PURPOSES ONLY), DEFENDANTS-RESPONDENTS,
AND SORDONI SKANSKA CONSTRUCTION COMPANY, A DELAWARE CORPORATION, THIRDPARTY PLAINTIFF, v. A.G. MAZZOCCHI, INC., THIRD-PARTY DEFENDANT.
A-2854-98T2
SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
337 N.J. Super. 76; 766 A.2d 761; 2001 N.J. Super. LEXIS 29
December 6, 2000, Argued
January 26, 2001, Decided
SUBSEQUENT HISTORY:
[***1] Approved for
Publication January 26, 2001. As Amended February 1,
2001.
PRIOR HISTORY:
On appeal from the Superior
Court of New Jersey, Law Division, Essex County, L6414-95.
COUNSEL: Sidney Shaievitz argued the cause for
appellants (Shaievitz & Berowitz, attorneys; Mr.
Shaievitz, on the brief).
Daniel K. Newman argued the cause for respondent
Sordoni Skanska Construction Company.
Respondents A.G. Mazzocchi, Inc., The Taubman
Company, The Prudential Realty Company, Hobbs &
Black Associates and Short Hills Associates have not
filed a brief.
JUDGES: Before Judges KEEFE, EICHEN 1 and
STEINBERG. The opinion of the court was delivered by
STEINBERG, J.A.D.
1
Judge Eichen did not participate in oral
argument. However, the parties consented to her
participation in the decision.
OPINION BY: STEINBERG, J.A.D.
OPINION
[*80]
delivered by
[**763]
The opinion of the court was
STEINBERG, J.A.D.
Plaintiffs, Robert Klier, Sr. and Marianne Klier, 2 his
wife, appeal from an order dismissing their complaint
with prejudice as to defendant Sordoni Skanska
Construction Company (defendant or Sordoni) "for
failure to state a cause of action against defendant," and
from [***2] the denial of their subsequent motion
seeking to vacate the prior order and restore the case to
the trial list. They also appeal from a previous
interlocutory order that denied their application to have
unrestricted ex parte communications with all former
employees of A.G. Mazzocchi, Inc. (Mazzocchi), Charles
Imbimbo, George Daniel and Robert Gordon, without the
express consent of defendants' attorney. We reverse each
order and remand for further proceedings.
2
Marianne Klier's claim is a derivative per
quod claim. Accordingly, all references to
plaintiffs in this opinion shall refer to Robert
Klier, Sr.
This case arises out of a construction site accident.
In January 1993, defendant entered into a contract with
Prutaub Joint Venture, the owner of the mall at Short
Hills, for demolition, asbestos removal, remodeling and
expansion, preparation of three department store pads
and the addition of three parking decks. In March 1993,
defendant entered into a subcontract with Mazzocchi for
certain demolition [***3] work.
On January 11, 1994, the day of the accident that led
to this lawsuit, plaintiff was a laborer employed by
Mazzocchi. He had been hired out of Laborer's Local
Union 526. Although he had previously worked at the
site for other subcontractors of Sordoni, it was his first
day on the job for Mazzocchi. Plaintiff and Gordon, a
laborer from the same union and local, were directed to
report to Imbimbo, who was Mazzocchi's foreman. They
were joined by Daniel, a carpenter hired out of
Carpenter's Union Local [*81] 620 by Mazzocchi about
a week and one-half before the accident. Plaintiff, along
137
with Gordon, Daniel and Imbimbo were demolishing a
large overhang or canopy on the south side of
Bloomingdale's Department Store. 3 The underside of the
canopy was lath and mortar, with connection stringers
wired to structural components. The demolition
procedure involved the cutting of each wire and the use
of wrecking bars, a sawsall, lump hammers and a twoby-four to pry away the soffit.
3 The description of the accident was taken from
the report of plaintiff's engineer, William Poznak.
The record contains no eyewitness account of the
accident.
[***4] When the soffit was loose, partly lying on
the ground, Imbimbo told plaintiff, Gordon and Daniel to
remove tools that were lying under it. While they were
doing so, and while plaintiff and Gordon were under the
canopy, Imbimbo, without warning, started prying at the
attached soffit with an eight or ten-foot two-by-four. The
soffit suddenly broke loose and fell, hitting plaintiff,
causing him to sustain serious personal injuries.
The case was scheduled for trial on September 29,
1998. On that date, immediately prior to trial, the judge
to whom the case had been assigned stated that he had
"serious concerns about the cause of action." Noting that
the case would take approximately two weeks to try, the
judge said, "[i]t seems to me that it would be good
administration to determine whether there is a cause of
action. At least in my view." The judge stated that he
recognized that he could require the plaintiff to present
his case, and, if there was a motion at the conclusion of
plaintiff's case, he [**764] would "accept the truth of
oral statements made on behalf of the plaintiff and . . .
draw all inferences which may reasonably be drawn
against the motion to dismiss." He [***5] proposed to
"shortcut that procedure and to have [plaintiff's attorney]
put on the record the best case that he hopes to produce
here. And I will apply the rule that I--that is applied at
the conclusion of the plaintiff's case which I have already
enunciated. And I will hear argument and [*82] make a
determination as to whether or not, in my view, there is
something which should go to the jury."
The judge said that he had used that procedure
before and he felt, "[i]t is good administration from the
judicial point of view. I also think it is good from the
parties' point of view," since the trial would be long and
expensive.
Although there appears to have been a discussion in
chambers, off the record, regarding the procedure
proposed by the judge, on the record plaintiff's attorney
began to state his case without objection to the
procedure. However, in the course of his argument, he
stated that he was not "prepared to argue this motion"
because he had not brought his file or the report of his
expert. The argument was postponed to afford counsel an
opportunity to prepare, and to submit his expert's report.
On October 1, 1998, after hearing further argument, the
motion judge [***6] refused to hold defendant, the
general contractor, liable for the "egregiously stupid" act
of Imbimbo, who was an employee of Mazzocchi, the
subcontractor, who caused the canopy to collapse by
prying at its soffit.
Plaintiffs filed a motion seeking reconsideration,
supported by a supplemental engineering report. The
judge heard oral argument on the motion, and noted that,
"It strikes me that this [report] . . . is a net opinion." The
judge reserved decision and, without any further opinion,
later entered an order denying the motion.
On this appeal, plaintiffs raise the following
arguments:
POINT I THE TRIAL COURT'S
PROCEDURE IN INITIATING AND
CONDUCTING, SUA SPONTE, A
PROCEDURE TO DISMISS
PLAINTIFFS' CASE FOR FAILURE TO
STATE A CLAIM UPON WHICH
RELIEF CAN BE GRANTED WAS
IMPROPER AND IS GROUNDS FOR
REVERSAL
POINT II PLAINTIFFS' LIABILITY
EXPERT'S
REPORT
AND
SUPPLEMENTAL REPORT DID NOT
CONSTITUTE NET OPINIONS
POINT III THE DISMISSAL OF
THIS SUIT FOR FAILURE TO STATE
A CAUSE OF ACTION SHOULD BE
REVERSED WHERE:
A. THE RISK OF
INJURY TO KLIER WAS
R E A S O N A B L Y
FORESEEABLE
B .
T H E
RELATIONSHIP OF THE
PARTIES IMPLICATED
WORKPLACE SAFETY
CONCERNS
[*83] C. THERE
WERE VIOLATIONS
[ * * * 7]
OF OSH A
SAFETY REGULATIONS
WHICH PROXIMATELY
CAUSED PLAINTIFF'S
ACCIDENT
D.
THERE
WERE
138
OPPORTUNITIES TO
TAKE CORRECTIVE
MEASURES
E. THERE WERE
VIOLATIONS OF
SAFETY CODES AND
STANDARDS WHICH
PROXIMATELY
CAUSED PLAINTIFF'S
ACCIDENT
F. NEGLIGENT
INSPECTION BY
SORDONI WAS A
PROXIMATE CAUSE OF
PLAINTIFF'S ACCIDENT
G. SORDONI, AS
T H E
S I N G L E
REPOSITORY OF
RESPONSIBILITY FOR
THE SAFETY OF ALL
WORKERS ON THE
PROJECT, HAD A NONDELEGABLE DUTY TO
MAINTAIN A SAFE
WORKPLACE AND
BORE RESPONSIBILITY
FOR ALL OSHA
VIOLATIONS [**765]
ON
THE
JOB;
VIOLATION OF AN
OBLIGATION IMPOSED
BY OSHA PERTAINING
TO SAFETY SUPPORTS
A TORT CLAIM
POINT IV PLAINTIFFS' COUNSEL
SHOULD HAVE UNRESTRICTED
ACCESS TO ALL PRESENT AND
FORMER EMPLOYEES OF
MAZZOCCHI NOT REPRESENTED BY
COUNSEL
We first consider plaintiffs' contention that the trial
judge erred in sua sponte instituting the summary
procedure and dismissing their complaint. We agree. Our
rules of court must be "construed to secure a just
determination, simplicity in procedure, fairness in
administration and the elimination of unjustifiable
expense and delay." R. 1:1-2. The cornerstone of our
judicial system [***8] is that justice is the polestar and
the procedures utilized by the courts must "be moulded
and applied with that in mind." N.J. Highway Authority
v. Renner, 18 N.J. 485, 495, 114 A.2d 555 (1955). Our
ultimate goal is not, and should not be, swift disposition
of cases at the expense of fairness and justice. Rather,
our ultimate goal is the fair resolution of controversies
and disputes. R. H. Lytle Co. v. Swing-Rite Door Co.,
Inc., 287 N.J. Super. 510, 513, 671 A.2d 602 (App. Div.
1996). Eagerness to move cases must defer to our
paramount duty to administer justice in the individual
case. Audubon Volunteer Fire Co. No. 1 v. Church
Constr. Co., 206 N.J. Super. 405, 406, 502 A.2d 1183
(App.Div.1986). Stated another way, while the concepts
of "judicial administration" and fairness are not
necessarily incompatible, the desire to facilitate judicial
administration must take a back seat to our primary goal
which is to adjudicate cases fairly and impartially.
Shortcuts should not be utilized at the expense of justice.
[*84] The minimum requirements of due process
of law are notice and an opportunity to be heard. Doe v.
Poritz, 142 N.J. 1, 106, 662 A.2d 367 (1995). [***9] The
opportunity to be heard contemplated by the concept of
due process means an opportunity to be heard at a
meaningful time and in a meaningful manner. Ibid.
Indeed, our rules of court contemplate that motions be
made in writing. R. 1:6-2(a). Moreover, ordinarily,
motions must be filed and served not later than sixteen
days before a specified return date. R. 1:6-3(a). Our
summary judgment rule requires a motion seeking that
relief to be filed not later than twenty-eight days before
the time specified for the return date. R. 4:46-1. In
addition, a party seeking summary judgment must file a
brief and, at the very minimum, a statement of material
facts in support of the motion. R. 4:46-2(a). The purpose
of these rules is obvious, that is, to afford the party
against whom relief is sought notice of the application,
together with a meaningful opportunity to respond. The
procedure resorted to by the trial judge in this case
defeated those purposes. For example, had defendants
filed a motion, plaintiffs would have had the opportunity
[***10] to respond to the objection to their expert's
opinion. Instead, plaintiff came to court prepared to pick
a jury, but rather, was required to defend a motion,
brought by the court sua sponte, to dismiss his complaint.
We recognize that the judge gave plaintiffs' attorney
two days to produce his expert's report and further argue
against the motion. 4 We conclude that that opportunity
was insufficient to remedy the defect in the judge's
procedure. Had plaintiffs' attorney been given sufficient
advance notice of the application for dismissal, he would
have had a meaningful opportunity to contact his expert
and supply a supplemental report, as he did on his motion
for reconsideration. We cannot condone a procedure
whereby a judge sua sponte, without notice to a party,
resorts to a "shortcut" for the purposes of "good
administration" and circumvents [*85] the basic
139
[**766] requirements of notice and opportunity to be
heard.
4 In that two day period, a religious holiday
intervened.
Defendants' [***11] reliance on Enourato v. New
Jersey Building Authority, 182 N.J. Super. 58, 440 A.2d
42 (App.Div.1981), aff'd, 90 N.J. 396, 448 A.2d 449
(1982), is misplaced. Although we held in Enourato that
a Law Division judge has the power to dismiss a case on
the same day the complaint was filed, we also observed
that "only an extraordinary situation could justify such a
procedure." Enourato, supra, 182 N.J. Super. at 64-5,
440 A.2d 42. We cautioned that "[o]rdinarily a trial judge
should not dismiss an action as summarily" as was done
in that case. Id. at 64, 440 A.2d 42. Only because the
situation before the judge was truly emergent in nature,
coupled with the public importance of the question
involved, including the large amount in controversy, did
we conclude that the trial judge properly exercised his
discretion in dismissing a complaint challenging
legislation establishing the New Jersey Building
Authority that threatened a proposed bond sale the next
day. Id. at 65-66, 440 A.2d 42. Simply put, we conclude
that the mere fact that the trial in this case may be long
and expensive is not an extraordinary [***12] situation
justifying the summary procedure instituted by the judge.
We next consider defendants' contention that
plaintiffs' attorney consented to the procedure adopted by
the judge. While this appeal was pending, based upon
conflicting affidavits and certifications of opposing
counsel as to whether plaintiffs' attorney consented to the
procedure, we "remanded to the trial court for the
purpose of resolving the issue of whether plaintiffs'
attorney consented to the procedure followed by the trial
court." We intended that the remand proceeding be
conducted by the same judge who originated the
procedure. Instead, the remand was presided over by a
different judge who reviewed the transcripts, and the
conflicting certifications and concluded that plaintiffs'
attorney implicitly consented to the proceedings by
failing to voice an objection. We disagree. Initially, at the
very least, in light of the conflicting certifications and
affidavits the judge should have [*86] conducted a
plenary hearing. However, we decline to remand at this
time for a plenary hearing. To do so would give our tacit
approval to the procedure utilized. In addition, we are
persuaded by the certification of plaintiffs' [***13]
attorney that the judge "did not request consent; he
merely explained what he was about to do and we then
proceeded to the courtroom to go on the record. It was
not for me to consent or protest." Plaintiffs' attorney was
placed in a difficult position in light of the unorthodox
procedure utilized by the judge, and, under these
circumstances, we decline to hold that he tacitly
consented to this procedure.
We also note that the prior remand was necessitated,
in part, because there appeared to be an unrecorded
discussion in the judge's chambers regarding the
procedure proposed by the judge. We have previously
noted that "[c]ounsel and the trial judge have a mutual
obligation to make a record and to request and provide
for the record a notation of events occurring in chambers,
either by way of actual transcript, or summarization on
the record so that a reviewing court will have the benefit
thereof." State v. Green, 318 N.J. Super. 361, 380, 724
A.2d 254 (App.Div.1999), aff'd. o.b. 163 N.J. 140, 747
A.2d 1234 (2000), citing Fehnel v. Fehnel, 186 N.J.
Super. 209, 217, 452 A.2d 209 (App.Div.1982). While we
recognize that it is impractical [***14] to require a
record, or transcript of mundane, innocuous in-chambers
discussions, we hold that when the discussion concerns
important subjects such as the procedure to be utilized, a
record must be made or a summary placed on the record
as to what transpired in chambers. Only then is effective
appellate review insured.
We next consider plaintiffs' contention that the
motion judge erred in [**767] denying their motion to
allow ex parte communication with Imbimbo, Gordon
and Daniel, who were former employees of Mazzocchi,
without notice to counsel for defendant. The motion
judge concluded that the acts of the employees could be
imputed to Mazzocchi, and, in turn to defendant, as the
general contractor, under agency principles; and also
concluded that they "may have been significantly
involved in the determination of [*87] [Mazzocchi's]
legal position," and their involvement "was greater than
simply eyewitnesses to the accident" since "they were
actively involved in the work . . . which gave rise to the
events in question. . . ."
The standard for an attorney's communication with a
person represented by counsel is set forth in R.P.C. 4.2,
[***15] which provides, in pertinent part, as follows:
In representing a client, a lawyer shall
not communicate about the subject of the
representation with a person the lawyer
knows, or by the exercise of reasonable
diligence should know, to be represented
by another lawyer in the matter, including
members of the organization's litigation
control group as defined by R.P.C. 1.13,
unless the lawyer has the consent of the
other lawyer.
The rule governing representation by an attorney
when the client is an organization is set forth in R.P.C.
1:13(a), which provides, in pertinent part, as follows:
140
For the purposes of R.P.C. 4.2 . . .
the organization's lawyer shall be deemed
to represent not only the organizational
entity but also the members of its
litigation control group. Members of the
litigation control group shall be deemed to
include current agents and employees
responsible for, or significantly involved
in, the determination of the organization's
legal position in the matter whether or not
in litigation, provided, however, that
"significant involvement" requires
involvement greater, and other than, the
[***16] supplying of factual information
or data respecting the matter. Former
agents and employees who were members
of the litigation control group shall
presumptively be deemed to be
represented in the matter by the
organization's lawyer but may at any time
disavow such representation.
In seeking access to Imbimbo, Gordon and Daniel,
plaintiffs assert that they are fact witnesses, and are not
members of an organization's litigation control group.
Defendant counters that plaintiffs should not be
permitted access to Imbimbo, Gordon and Daniel
because the statements of these witnesses could be
imputed to Mazzocchi for the purpose of liability. 5 The
judge [*88] determined that under "traditional agency
principles" the acts of Imbimbo, Gordon and Daniel
"conceivably" could have been imputed to Mazzocchi. 6
The judge concluded that there was "a very genuine
factual issue as to the risk of imputed liability to
Mazzocchi as a result of the actions taken by Imbimbo,
Cooper 7 and Daniel at the scene on that particular
occasion." The judge then determined that Imbimbo and
Cooper [sic], "were or may have been significantly
involved in the determination of [Mazzocchi's] legal
position in [***17] this matter, that their involvement . .
. was greater than simply eyewitnesses to the accident,
that they were actively [**768] involved in . . . the
demolition work . . . which gave rise to . . . the injuries to
the plaintiff." He then determined that there was "a
reasonable basis to conclude that [defendant] may be
held . . . liable along with [Mazzocchi] for the acts or
omissions of the employees of [Mazzocchi], and thereby
the acts or omissions of the employees of [Mazzocchi]
are imputable to [defendant]." Without providing any
legal analysis, he ultimately concluded that Imbimbo,
Gordon and Daniel, as former employees of Mazzocchi,
"shall be deemed to be part of the litigation control group
of Mazzocchi and of [defendant]." The record on
plaintiff's motion consisted of a certification of his
attorney stating that Grace Mazzocchi had advised the
attorney that it had terminated Imbimbo and that Gordon
had also left the company. The attorney further certified
that at their depositions, Imbimbo and Gordon were not
represented, and Imbimbo stated that he was not
represented by an attorney.
5
In opposition to the motion, apparently
defendants' attorney filed a certification dated
December 27, 1996. Unfortunately, and contrary
to R. 2:6-1(a)(1)(H), plaintiffs' attorney has not
included that certification in his appendix. If
defendants' attorney considered that certification
necessary to the proper consideration of the
issues, he could have included it in his appendix.
R. 2:6-3. He has not done so. We note that the
motion judge did not refer to the certification in
determining the motion.
[***18]
6
Since Mazzocchi was plaintiff's employer,
plaintiff is barred by the exclusivity provisions of
the Workers' Compensation Act, particularly
N.J.S.A. 34:15-8, from asserting a claim for
personal injuries against Mazzocchi, or his fellow
employees, Imbimbo, Daniel and Gordon.
7 We assume that the reference to Cooper was
inadvertent and the judge meant Gordon.
Prior to 1996, R.P.C. 4.2 provided as follows:
In representing a client, a lawyer shall
not communicate about the subject of the
representation with a party the lawyer
knows to be represented by another
lawyer [*89] in the matter, unless the
lawyer has the consent of the other lawyer
or is authorized by law to do so.
In 1993, the Supreme Court, when called upon to
interpret that rule, elected to refer the question of which
organizational employees should be accessible to
opposing counsel to a special committee to "fully assess
the policy implications" in varied contexts. In the Matter
of Opinion 668 of the Advisory Comm. on Prof'l. Ethics,
134 N.J. 294, 303-04, 633 A.2d 959 (1993). [***19] The
Special Committee on R.P.C. 4.2 issued its report on
March 20, 1995, Rep. of Special Committee Rep. on
R.P.C. 4.2, 139 N.J.L.J. 1161, 1193 (1995) (Committee
Rep.) After the Committee rendered its report, R.P.C.
1.13, 4.2 and 4.3 were amended, effective September 1,
1996. The amendments reflected the recommendations
made by the Committee. Michaels v. Woodland, 988 F.
Supp. 468, 470 (D.N.J.1997).
141
The current rules prohibit communication only with
employees who are members of the organization's
litigation control group, or are represented by another
lawyer in the matter. R.P.C. 4.2. This is in accord with
the Committee's recommendation that the prohibition
against ex parte communication should not extend to
employees who were only fact witnesses or involved
with the subject matter of the litigation. Committee Rep.,
supra, 139 N.J.L.J. at 1195-96. The Committee explained
that extending the prohibition against ex parte
communication to employees [***20] who were only
involved in the subject matter of the litigation would
include too many people "whose interests are most likely
not only not congruent with the organization's but also, in
many cases, in conflict with it." Ibid. (quoted in
Michaels, supra, 988 F. Supp. at 471). The Committee
determined that the bar against ex parte communications
should only apply in those situations where the employee
is not only a fact witness, but also is significantly
involved in determining the organization's legal position
as opposed to merely supplying information. Committee
Rep., supra, 139 N.J.L.J. at 1195-96. In its
recommendation, the Committee specifically provided
that "[s]ignificant involvement requires involvement
greater than merely supplying factual information
regarding [*90] the matter in question." Id. at 1195.
Moreover, in its comment on proposed R.P.C. 1:13, the
Committee specifically noted that the bar "does not
include persons whose actions bind the organization or
are imputable to the organization or who are responsible
for other aspects of organizational policy unless they
meet the 'legal position' [***21] test." Committee Rep.,
supra, 139 N.J.L.J. at 1196.
Thus, the first determination that must be made by a
court in considering whether to allow ex parte interviews
of current and former employees of an organization
[**769] is whether the witness is a current or former
employee. R.P.C. 1:13(a); Michaels, supra, 988 F. Supp.
at 472. If the witness is a current employee, the judge
must determine whether the person is within the litigation
control group as defined by R.P.C. 1:13(a), and, if not,
whether the person has obtained other representation.
R.P.C. 4.2; Michaels, supra, 988 F. Supp. at 472. R.P.C.
4.2 prohibits an adverse attorney from having ex parte
contact with any current employee who is within the
litigation control group. Ibid. On the other hand, if the
current employee is not within the litigation control
group and has not obtained other representation, ex parte
contact is permitted consistent with R.P.C. 4.2 and
R.P.C. 4.3. In addition, a former employee who was
[***22]
within the litigation control group is
presumptively represented by the organization. R.P.C.
1:13(a); Michaels, supra, 988 F. Supp. at 472. However,
pursuant to R.P.C. 1.13(a) and R.P.C. 4.2, the lawyer
may interview a former employee who was within the
litigation control group, if he or she disavows that
representation. Hence, nothing in the Rules prohibits ex
parte communication with a former employee who was
not within the litigation control group and who was not
otherwise represented by counsel. Michaels, supra, 988
F. Supp. at 472.
As previously noted in footnote four of this opinion,
the record on appeal does not include the certification of
defendant's attorney filed in opposition to the motion. We
assume that it did not assert that Imbimbo, Gordon and
Daniel were members of defendant's [*91] litigation
control group, since defendant does not argue in its
appellate brief that they were members of the litigation
control group. The judge, in generally concluding that
they "were or may have been significantly involved in
the determination of [Mazzocchi's] [***23] legal
position in this matter" did not make findings of fact or
state his legal conclusions that flowed from those factual
determinations. See R. 1:7-4(a) (The judge, in deciding a
motion that is appealable as of right, must find the facts
and state his conclusions of law thereon).
Since defendant does not contend on appeal that
Imbimbo, Gordon and Daniel were members of its or
Mazzocchi's litigation control group, we limit our
consideration to defendant's contention that ex parte
contact is prohibited since the acts of Imbimbo, Daniel
and Gordon could be imputed to defendant. In support of
that position, defendant relies upon Pub. Serv. Elect. &
Gas Co. v. Associated Elec. & Gas Ins. Services, Ltd., et
al, 745 F. Supp. 1037 (D.N.J.1990) and Erickson v.
Winthrop Laboratories, 249 N.J. Super. 137, 592 A.2d 33
(Law Div.1991). We conclude that those authorities are
inapposite in light of the fact that they were decided
before the amendments to the R.P.C.'s. Accordingly, to
the extent they hold that the court must consider whether
the acts of former employees could be imputed to the
corporate employer, [***24] they have been superseded
by the amendments. "The fact that an agent or employee
may impute liability, in and of itself, does not determine
whether he or she is represented by the organization's
counsel, thus implicating the ex parte communication
bar." Committee Rep., supra, 129 N.J.L.J. at 1196. In
addition, we conclude that the motion judge incorrectly
relied on Curley v. Cumberland Farms, Inc., 134 F.R.D.
77 (D.N.J.1991), because that case was also decided
before the 1996 Rule amendments, and involved
consideration of agency principles.
The record presented to us on appeal does not permit
a definitive conclusion as to whether Imbimbo, Daniel
and Gordon are, or were, members of the litigation
control group. In addition, the judge has not provided
sufficient findings of fact and conclusions [*92] of law
which allows us to review his conclusion that they "were
or may have been significantly involved in the
determination of [Mazzocchi's] legal position."
142
Moreover, as previously noted, the judge incorrectly
determined that ex parte interviews were prohibited
because the [**770] acts of Imbimbo, Gordon or Daniel
may ultimately be imputed to Mazzocchi [***25] or
defendant. Accordingly, we reverse the interlocutory
order, and remand for further proceedings. At the remand
proceedings, the judge must determine whether the
specific person sought to be interviewed is a current
employee. If the person is a current employee, the judge
must determine whether the person is within the litigation
control group, and, if not, whether the person has
obtained other representation. If the person has obtained
other representation, obviously an ex parte interview is
not permitted.
On the other hand, if the current employee is not
within the litigation control group and has not obtained
other representation, ex parte contact is permitted
consistent with R.P.C. 4.3. If plaintiff's attorney seeks to
interview a former employee who was within the
litigation control group, that person is presumptively
represented by the organization and plaintiff's attorney,
pursuant to R.P.C. 4.2, may not interview the person
unless that person has disavowed that representation. If
the person sought to be interviewed is a former employee
who was not within the litigation control group, and is
not [***26] otherwise represented by counsel, ex parte
communication is to be allowed. Finally, the mere fact
that liability may be imputed to the corporation by virtue
of the act of the present or former employee does not
mean that the employee may not be interviewed so long
as the employee is not or was not a member of the
litigation control group and is not represented by counsel.
Although not raised by the parties, we deem it
appropriate to comment on the procedure utilized by
plaintiff's attorney in seeking judicial approval prior to
attempting to contact Imbimbo, Gordon or Daniel. We do
not suggest or imply that when an attorney seeks to
conduct an ex parte interview with a current or [*93]
former employee of an adversary, notice to the adversary
or judicial approval is required. Andrews v. Goodyear
Tire & Rubber Co., Inc., 191 F.R.D. 59, 77 (D.N.J.2000).
An attorney may contact a current or former employee ex
parte in an effort to determine whether that person is
represented by counsel, or is included in the
organization's litigation control group. R.P.C. 4.2;
Andrews, supra, 191 F.R.D. at 77. At [***27] that point,
the attorney must exercise reasonable diligence and
attempt to determine whether the person is represented,
or is a member of the litigation control group. R.P.C. 4.2.
In addition, the attorney must comply in all respects with
R.P.C. 1.13, R.P.C. 4.2 and R.P.C. 4.3. However, we
remand in this case because here, plaintiff sought judicial
approval prior to attempting to contact Imbimbo, Gordon
or Daniel.
In light of our conclusion that the summary
proceeding instituted by the trial judge sua sponte was
improper and necessitates a reversal of the order
dismissing plaintiff's complaint for failure to state a claim
upon which relief may be granted, we do not reach the
arguments raised by plaintiff in Points II and III of his
brief. Our decision not to consider those issues should
not be viewed as an indication as to how we perceive the
merits of those claims, or the position taken by the trial
judge.
Reversed and remanded for further proceedings not
inconsistent with this opinion. In light of our disposition
of this appeal, we need [***28] not consider the
contention raised in plaintiff's reply brief to this court
asking that we strike defendants' brief due to the
inclusion "of documents not in the record below and of
misrepresentations of the record."
143
IN THE MATTER OF THE STATE GRAND JURY INVESTIGATION.
A-80 September Term 2008
SUPREME COURT OF NEW JERSEY
200 N.J. 481; 983 A.2d 1097; 2009 N.J. LEXIS 1155
September 14, 2009, Argued
November 23, 2009, Decided
PRIOR HISTORY: [***1]
On appeal from the Superior Court, Appellate Division.
In re State Grand Jury Investigation, 198 N.J. 306, 966
A.2d 1074, 2009 N.J. LEXIS 220 (2009)
SYLLABUS
(This syllabus is not part of the opinion of the Court.
It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed
nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not
have been summarized).
IMO State Grand Jury Investigation (A-80-08)
Argued September 14, 2009 -- Decided November
23, 2009
RIVERA-SOTO, J., writing for a unanimous
Court.
In this case involving a grand jury investigation of a
company, the Court considers whether the trial court
properly denied a motion to disqualify attorneys that the
company retained and paid to represent employees who
were potential witnesses against it.
The State commenced a grand jury investigation into
whether a corporate contractor (company) had submitted
fraudulent invoices for services purportedly rendered to a
county government. The inquiry focused primarily on the
company and three employees. The company arranged
for counsel for the employees, entering into four separate
retainer agreements with four lawyers, three of whom
were assigned to represent the three employees,
respectively, [***2] and a fourth to represent all nontarget current and former employees. The retainer
agreements provided, in part, that the company would be
responsible for the attorney fees, the attorneys'
professional obligation was to the individual employees
only, the attorneys were not required to make any
disclosures to the company, and payment of the legal fees
was not conditioned on the attorneys' cooperation with
the company or any other party. In addition, the company
wrote letters to the employees advising that although it
had retained counsel for them, they were not required to
use that counsel and were free to hire and pay for their
own attorneys. The letters explained that the company
retained the attorneys because it recognized that the
employees' personal rights may conflict with the interests
of the company, and advised that the company had the
right to stop paying the company-retained attorneys at
any time. The company announced to its other employees
that it had retained a lawyer, free of charge to them, with
whom they could consult and who was available to
represent them in respect of the grand jury inquiry.
The State moved before the trial court to disqualify
the company-retained [***3] attorneys. In response,
each employee submitted a certification asserting that he
or she was unable to afford separate counsel and was
satisfied with and wished to remain with the companyretained counsel.
The trial court analyzed the Rules of Professional
Conduct relevant to the State's motion to disqualify.
Noting the quality of the attorneys retained by the
company for the employees, and based on the provisions
of the retainer agreements and the letters that the
company sent to the employees, the court denied the
State's motion to disqualify. However, the court imposed
additional requirements. With regard to the
confidentiality of information between a lawyer and a
client and to cure any suggestion that billings sent to the
company might reveal significant aspects of the grand
jury investigation, the court required going forward that
all bills sent to the company be redacted so that no
specific information would be detailed. The court also
required that the company and the individual attorneys,
prior to ending any relationship for payment or any
representation of an employee, make an application to
the court, following which a hearing would be
conducted.
In an unpublished order, the [***4] Appellate
Division denied the State's motion for leave to appeal.
The State filed a motion for leave to appeal in the
Supreme Court, which granted the motion. 198 N.J. 306,
144
966 A.2d 1074 (2009).
HELD: The Rules of Professional Conduct forbid a
lawyer from accepting compensation for representing a
client from one other than the client unless three factors
coalesce: (1) the client gives informed consent; (2) there
is no interference with the lawyer's independence of
professional judgment or with the lawyer-client
relationship; and (3) information relating to the
representation of the client is protected. Applying these
Rules, the Court affirms the trial court's denial of the
State's motion to disqualify attorneys retained and paid
by an employer to represent employees who were
potential witnesses in a grand jury investigation into the
employer's conduct.
1. A court's evaluation of an alleged actual or
apparent conflict is fact specific. To warrant
disqualification of counsel, the asserted conflict must
have some reasonable basis. (Pp. 11-12)
2. The law of this State has been that an attorney for
an employee may not accept an employer's promise to
pay his or her bill because such an arrangement risks
dividing [***5] the attorney's loyalty between the client
and the client's employer. Beginning in 1984 and over a
course of years, however, the State revised its ethics
rules, including making changes pertinent to this matter.
One of the Rules of Professional Conduct, RPC 1.8(f),
now states that a lawyer shall not accept compensation
for representing a client from one other than the client
unless: (1) the client gives informed consent; (2) there is
no interference with the lawyer's independence of
professional judgment or with the lawyer-client
relationship; and (3) information relating to the
representation of the client is protected. Additional rules
pertinent to this matter include RPC 1.7(a)(2), which
forbids a lawyer from representing a client if there is a
significant risk that the representation will be materially
limited by the lawyer's responsibilities to a third person,
and RPC 5.4(c), which provides that a lawyer "shall not
permit a person who recommends, employs, or pays the
lawyer to render legal services for another to direct or
regulate the lawyer's professional judgment in rendering
such legal services." (Pp. 12-15)
3. Harmonizing RPC 1.8(f), RPC 1.7(a)(2), and RPC
5.4(c) results in [***6] a salutary, yet practical principle:
a lawyer may represent a client but accept payment,
directly or indirectly, from a third party provided each of
six conditions is satisfied. Those conditions are: (1) the
informed consent of the client is secured; (2) the thirdparty payer is prohibited from, in any way, directing,
regulating or interfering with the lawyer's professional
judgment in representing the client and the lawyer-client
relationship remains sacrosanct; (3) there is no current
attorney-client relationship between the lawyer and the
third-party payer; (4) the lawyer is prohibited from
communicating with the third-party payer concerning the
substance of the representation of the client, which
includes redaction of details from any billings submitted
to the third-party payer; and (5) the third-party payer
pays all such invoices within the regular course of its
business, consistent with the manner, speed and
frequency it pays its own counsel. The final condition is
that the third-party payer shall not be relieved of its
continuing obligation to pay without leave of court
brought on prior written notice to the lawyer and the
client. In this application, the third-party payer shall
[***7] bear the burden of proving that its obligation
should cease. If a third-party payer fails to pay an
employee's legal fees and expenses when due, the
employee shall have the right, via a summary action, for
an order to show cause. (Pp. 15-19)
4. Applying the principles to this case, the trial court
properly denied the motion to disqualify. Through the
combined product of the good faith of the employer, the
diligence of competent counsel and the exercise of the
trial court's supervisory authority, the net result of the
company's retention and payment of counsel for its
employees complied with the Rules of Professional
Conduct. The Court provides some guidance, however,
for the future. First, the letters to the employees from the
company explained that it was providing counsel on a
"take-it-or-leave-it" basis and the employees could retain
and pay their own counsel if they wished. Although this
does not satisfy the informed consent requirement of
RPC 1.8(f), each employee certified that he or she was
satisfied with the assigned counsel and wished to remain
that attorney's client. In the future, no limitation on the
choice of counsel should be imposed on the employee
except for reasonable [***8] limitations on fees and
expenses. Second, future retention letters should clearly
note that nothing in the representation shall limit the
lawyer's responsibilities to the client, and that the thirdparty payer shall not, in any way, seek to direct or
regulate the lawyer's professional judgment in rendering
such legal services. Third, although the record
established that the attorneys do not have a current
relationship with the company, future retention letters
should clearly spell out that fact. Fourth, the trial court
appropriately imposed additional conditions on the
provision in the retention letters that the attorneys were
not required to disclose information to the company.
Future retention letters should affirmatively state that the
lawyer will not disclose any part of the substance of the
representation of the client to the third-party payer and
all billings provided to the third-party payer must have
any detail information redacted and simply state the sum
due for services and the sum due to expenses. Finally, as
the trial court required, if the employer wishes to
discontinue paying the legal fees and expenses of an
employee, it may do so only by leave of court granted.
(Pp. [***9] 19-22)
145
The order of the Law Division denying the State's
motion to disqualify the counsel retained to represent the
company's employees before the grand jury is
AFFIRMED.
COUNSEL: Frank Muroski, Deputy Attorney General,
argued the cause for appellant State of New Jersey (Anne
Milgram, Attorney General, attorney).
Lawrence S. Lustberg, argued the cause for respondents
Jack Arseneault, Esq., Jerome J. Convery, Esq., Timothy
M. Donohue, Esq., and John P. McDonald, Esq.
(Gibbons, attorneys; Mr. Lustberg and Jennifer Mara on
the briefs).
Richard A. Rafanello argued the cause for respondent
Laidlaw Transit Services, Inc. (Shain, Schaffer &
Rafanello, attorneys; Mr. Rafanello, Marguerite M.
Schaffer, and Gregory B. Pasquale, attorneys, on the
briefs).
Nicholas C. Harbist, argued the cause for amicus curiae
The Association of Criminal Defense Lawyers of New
Jersey (Blank Rome, attorneys; Mr. Harbist, James T.
Strawley, and Inez R. McGowan, attorneys, on the brief).
JUDGES: JUSTICE RIVERA-SOTO delivered the
opinion of the Court. JUSTICES LONG, LaVECCHIA,
ALBIN, WALLACE, and HOENS join in JUSTICE
RIVERA-SOTO's opinion. CHIEF JUSTICE RABNER
did not participate.
OPINION BY: RIVERA-SOTO
OPINION
[*485]
[**1099]
Justice RIVERA-SOTO
delivered the opinion of the [***10] Court.
Confronted with a grand jury inquiry that
commanded the testimony of several of its employees, an
employer elected to provide and pay for counsel to those
employees for purposes of that investigation. Fearing that
having individual employees/grand jury witnesses
represented by counsel retained and compensated by the
putative target of the grand jury inquiry violated several
of the Rules of Professional Conduct, the State moved to
disqualify those counsel. The trial court denied that
application, limited the amount of information to be
transmitted by such counsel to the employer, and, further,
imposed restrictions both on the ability of the employer
to discontinue paying the fees of counsel for the
employees as well as on the ability of those counsel to
discontinue representing the subpoenaed employees.
Regardless of the setting--whether administrative,
criminal or civil, either as part of an investigation, during
grand jury proceedings, or before, during and after trial-whether an attorney may be compensated for his services
by someone other than his client is governed in large
measure by RPC 1.8(f) and, to a lesser extent, RPC 1.7(a)
and RPC 5.4(c). The overarching Rule, [***11] which
purposely is written in the negative, forbids a lawyer
from "accept[ing] compensation for representing a client
from one other than the client unless [three factors
coalesce]: (1) the client gives informed consent; (2) there
is no interference with the lawyer's independence of
professional judgment or with the lawyer-client
relationship; and (3) information relating to
representation of a client is protected" as provided in the
RPCs. RPC 1.8(f). A straightforward application of RPCs
1.7(a), 1.8(f) and 5.4(c) requires that we affirm the order
of the trial court.
[*486] I.
The operative facts on which this appeal arise are
readily stated. The State commenced a grand jury
investigation into whether a corporate contractor had
submitted fraudulent invoices for services purportedly
rendered to a county government. That inquiry focused
primarily on the contractor and three of its employees. In
response, the company arranged for counsel for its
employees. The company entered into four separate
retainer agreements with four separate lawyers, three of
whom were assigned to represent, respectively, the three
specific employees noted, and the fourth was retained to
represent "all non-target current [***12] and former
employees of [the company] . . . in connection with the
current state grand jury investigation."
[**1100] The retainer agreements with each of the
four lawyers, however, shared common characteristics
and were, in all substantive and material respects,
indistinguishable. A typical retainer agreement provided
(1) that the company "will be ultimately responsible to
[the] law firm for all reasonable and necessary legal fees
and expenses incurred in this matter[;]" (2) that the
"undertaking by the [c]ompany is made with the express
understanding that the sole professional obligation of
[the] law firm will be to [the named employee;]" (3) that
the "law firm is not required to disclose any legal
strategy, theory, plan of action, or the like, to the
[c]ompany;" (4) that "payment of legal fees by the
[c]ompany to [the] law firm in no way depends upon any
such disclosure[;]" (5) that "no professional relationship
will arise between the [c]ompany and [the] law firm as a
result of the rendering of legal services by [the law firm]
or the payment of legal fees and expenses by the
[c]ompany[;]" (6) that "the reimbursement of legal fees
and expenses . . . is neither conditioned upon nor
dependent [***13] upon [the] law firm's cooperation
with the [c]ompany or any other party[;]" (7) that while
"[d]etailed invoices will be provided to [the represented
146
employee,] to preserve the attorney/client privilege,
[only] summary invoices will be submitted to the
[c]ompany[;]" and (8) [*487] that the company would
be responsible to pay those invoices "upon receipt."
Based on the company's retention of separate
counsel for each of three employees identified by the
State, the company wrote to each such employee,
informing them that:
As you know, . . . the New Jersey
Attorney General's office served [the
company] with a Grand Jury subpoena
seeking various billing and payroll records
related to [the company]'s contract with
[the specified county government]. The
company has been fully cooperative with
the State's investigation.
Recently the Attorney General's
office has begun interviewing some of our
employees at the [identified] project.
Given your position with the [c]ompany
and involvement in this project, and based
upon the advice of our attorneys in New
Jersey, we believe it would be prudent to
retain separate counsel to represent you
personally in connection with the State's
investigation. Accordingly, [***14] [the
company] has retained [a specially
retained lawyer] to represent you in
connection with the State's investigation.
You do not have to use [that specially
retained lawyer] as your attorney. You are
free to hire your own attorney, at your
own costs. You should not interpret this
decision to mean that [the company]
believes there to have been any illegal
activity in this matter on the part of any
[company] employee. Rather, it is based
upon the recognition that your personal
rights may conflict with the interests of
the company. While [the company] agrees
to pay for your legal representation in this
matter, please understand that it has no
obligation to do so and may stop paying
those legal fees and costs at any time,
should it believe it appropriate to do so.
[Your specially retained lawyer] may
be reached at [ ]. His firm address is: [
].
Please expect [your specially retained
lawyer] to contact you directly to arrange
a convenient time to meet and discuss this
matter. Please feel free to contact me
directly or speak with [the company's
local counsel] if you have any questions
regarding this matter.
Very truly yours,
/s/
Senior Vice President and General
Counsel
[**1101] The company also announced [***15] to
all other employees that the company had retained a
lawyer--free of charge to the employees--with whom
those employees could consult and who was available to
represent those employees in respect of the grand jury
inquiry.
In time, two of the four lawyers retained by the
company to represent its employees were subpoenaed to
appear before the [*488] grand jury; they declined to
appear, and the State later withdrew those subpoenas.
The State then notified the company that it, along with
several unnamed employees, had been designated as
targets of the grand jury's investigation, 1 and later served
grand jury subpoenas for the company's records in
respect of the retention of counsel for its employees. The
company complied with that subpoena by producing
responsive but non-privileged documents.
1 In general, New Jersey adheres to the "target
doctrine," which provides that "a 'target' of a
grand jury proceeding must be advised that he is a
target and of his right not to incriminate himself,
failing which an indictment based on his
testimony will be quashed . . . [a] principle [that]
grows out of the privilege against selfincrimination[.]" State v. Vinegra, 73 N.J. 484,
488, 376 A.2d 150 (1977) (citations [***16]
omitted). For that reason, this State distinguishes
between "targets," that is, those in respect of
whom a grand jury investigation is aimed, and
"non-targets" of grand jury inquiries. State v.
Fary, 19 N.J. 431, 438-39, 117 A.2d 499 (1955);
State v. Korkowski, 312 N.J. Super. 429, 438, 712
A.2d 210 (App.Div.1998) (remanding case "for an
evidentiary hearing to determine if defendant was
a target of the grand jury investigation"). The
Legislature has recognized that distinction:
unindicted "targets" of a grand jury investigation
may "request . . . a statement indicating that a
charge against the person was investigated and
that the grand jury did not return an indictment
from the evidence presented[,]" N.J.S.A. 2B:219(a), while non-targets--those statutorily defined
as "[a] person who has been called to appear
before a grand jury for a purpose other than the
147
investigation of a charge against the person"--are
entitled to "request the grand jury to issue a
statement indicating that the person was called
only as a witness in an investigation, and that the
investigation did not involve a charge against the
person." N.J.S.A. 2B:21-9(b).
The State moved before the Superior Court to
disqualify the counsel retained [***17] by the company
to represent its employees "from further participation in
this matter, pursuant to RPC 1.7, RPC 1.8 and RPC
1.10[.]" In response, each of the employees to whom the
company had provided counsel to date--the three
identified "target" employees and two additional "nontarget" employees--submitted certifications asserting that
none of them could afford to retain separate counsel, and
that each was satisfied with and wished to remain with
their then counsel.
[*489] The trial court noted at the outset that it
"view[ed the company's] conduct as one that is certainly
to be appreciated." Addressing the caliber of the lawyers
retained by the company for its employees, the trial court
explained that "[a]s a major corporation, [the company]
didn't go out and hire some . . . low-level attorney. They
went out and hired competent, knowledgeable, respected
attorneys[.]" Focusing on the application of the Rules of
Professional Conduct to the State's motion for
disqualification, the court first observed that RPC 1.5
"talk[s] about fees being reasonable [and t]hat is not an
issue [before] the Court." Moving on to the application of
RPC 1.6, which addresses the confidentiality of
information [***18] between a lawyer and his client, the
trial court remarked that the retained lawyers had
provided certifications and sample redacted bills.
Agreeing that the procedure employed was proper, the
trial court emphasized that "[t]he only thing that I would
require going forward [is] that all of the bills [sent] to
[the company] be redacted [**1102] and that no specific
information be detailed in the billing."
Turning to RPC 1.7, the general conflict of interest
rule, the trial court concluded that, "at least at this point,
there's been no demonstration that there is even a conflict
[and] even if there were, these employees have the right
to waive that conflict." It also declared itself "satisfied
that there has been informed consent given by all [of] the
employees by way of what they have put in the
certifications." It concluded that
"the Court finds nothing improper about
the attorneys that have been retained by
[the company.] In fact, the Court would
go . . . further and say that [the
company]acted responsibly, quite frankly,
and with corporate policy and, quite
frankly, having been advised of the
reputation of these attorneys. And clearly
the understanding between the [company]
and these attorneys [***19] [was] spelled
out in not only the retainer agreements,
but [in] previous letters before all this was
signed."
It added, however, some restrictions: "that [the company]
and the individual attorneys, prior to ending any
relationship for payment, would have to make application
to the Court[,]" and that counsel were to "redact the
billing[s] to cure any notion that the State may have that
somehow the billing[s] will reveal significant aspects of
[the grand jury] investigation."
[*490] The trial court entered an order that denied
the State's motion to disqualify counsel. More
specifically, it
FURTHER ORDERED that before [the
company] may cease paying any of the
attorney's legal fees and costs, [the
company] shall provide notice to the
Court and all parties, and the Court shall
conduct a hearing on the issue of whether
[the company] may cease paying such
legal fees and costs; and
IT IS FURTHER ORDERED that
before any of the attorneys may withdraw
from this case based upon the refusal of
[the company] to pay the attorney's legal
fees and costs, such attorney shall provide
notice to the Court and all parties, and the
Court shall conduct a hearing on the issue
of the attorney's request to withdraw; and
IT
[***20] IS FURTHER
ORDERED that the attorneys henceforth
shall submit to [the company] legal bills
either in summary form or with all
detailed information redacted therefrom.
The State sought leave to appeal that determination
and, in an unpublished order, the Appellate Division
denied that application. It then moved before this Court,
seeking leave to appeal the trial court's order and other
ancillary relief. 2 Those motions were granted. In the
Matter of the State Grand Jury Investigation, 198 N.J.
306, 966 A.2d 1074 (2009). We also granted leave to the
Association of Criminal Defense Lawyers of New Jersey
(ACDL--NJ) to appear as amicus curiae. For the reasons
that follow, we affirm the order of the trial court.
2 The State also sought additional time within
which to file its brief in support of its motion for
148
leave to appeal, as well as leave to expand the
record.
II.
According to the State, a per se conflict of interest
arises whenever, as here, two facts contemporaneously
appear: a target in a grand jury investigation unilaterally
selects and retains a lawyer to represent potential
witnesses against it, and the lawyer relies on the target
for payment of legal fees. In the State's view, that
arrangement will [***21] split the attorney's loyalty and
will discourage the lawyer from counseling [**1103] the
client to cooperate with the State, even when cooperation
might be in the client's best interest. It asserts that the
perceived effect of allowing a target to select [*491]
and pay for counsel for the witnesses against it is to
irreparably taint the proceedings. The State also claims
that such a conflict cannot be waived and that, even if it
could be waived, a waiver could only be demonstrated
through the live testimony of the witnesses, and not, as
was done here, via certifications.
The lawyers whose disqualification is sought counter
that RPC 1.8(f) clearly contemplates an employer
designated as a grand jury "target" providing and paying
for separate counsel for its employees during that grand
jury inquiry. They reject the State's claim that, in the
criminal law setting, the better rule is the imposition of a
per se conflict. Finally, they assert that, even if a
potential conflict of interest exists, it has been effectively
waived. Amicus ACDL--NJ repeats those arguments.
The company echoes the arguments advanced both
by the lawyers whose disqualification is sought and by
amicus, and further asserts that, under [***22] the laws
of its place of incorporation, it has an obligation to
provide counsel to its employees, noting that, absent
counsel provided by and paid for by the company, most
of its employees would be unable to afford a lawyer.
III.
A.
"Our evaluation of an actual or apparent conflict . . .
does not take place in a vacuum, but is, instead, highly
fact specific." State v. Harvey, 176 N.J. 522, 529, 826
A.2d 597 (2003) (citations and internal quotation marks
omitted). "In that respect, the Court's attention is directed
to something more than a fanciful possibility." Ibid.
(citation and internal quotation marks omitted). "To
warrant disqualification in this setting, the asserted
conflict must have some reasonable basis." Ibid. (citation
and internal quotation marks omitted).
The State asserts that a target of a grand jury inquiry
providing and paying for the lawyers who will represent
the target's employees before the very grand jury
considering the target's culpability [*492] creates an
insoluble conflict not subject to waiver. Although the
State's arguments possess considerable initial appeal, in
light of modern changes in the manner in which attorneyclient relationships are to be viewed, we are constrained
to [***23] disagree.
No doubt, it long has been the law of this State that
it is "improper for [the attorney for an employee] to have
accepted the organization's promise to pay his bill, for
such an arrangement has the inherent risk of dividing an
attorney's loyalty between [his client] and [his client's]
employer who will pay for the services." In re Abrams,
56 N.J. 271, 275, 266 A.2d 275 (1970). In those
instances, we have concluded that "[a] conflict of interest
inheres in every such situation[,]" one that cannot be
waived "when the subject matter is crime and when the
public interest in the disclosure of criminal activities
might thereby be hindered." Id. at 276, 266 A.2d 275.
Reasoning that "[a]n attorney must realize that the
employer who agrees to pay him is motivated by the
expectation that he will be protected[,]" ibid., we have
concluded that
[i]t is inherently wrong to represent both
the employer and the employee if the
employee's interest may, and the public
interest will, be advanced by the
employee's disclosure of his employer's
criminal conduct. For the same reasons, it
is also inherently wrong for an attorney
who represents only the employee to
accept a promise to pay from [**1104]
one whose criminal liability may [***24]
turn on the employee's testimony.
[Ibid.]
See also Wood v. Georgia, 450 U.S. 261, 268-69, 101 S.
Ct. 1097, 1102, 67 L. Ed. 2d 220, 228-29 (1981)
(emphasizing that "[c]ourts and commentators have
recognized the inherent dangers that arise when a
criminal defendant is represented by a lawyer hired and
paid by a third party, particularly when the third party is
the operator of the alleged criminal enterprise. One risk is
that the lawyer will prevent his client from obtaining
leniency by preventing the client from offering testimony
against his former employer or from taking other actions
contrary to the employer's interest" (footnotes omitted));
State v. Norman, 151 N.J. 5, 34, 697 A.2d 511 (1997)
(citing Abrams, supra, and Wood, supra).
[*493] B.
That said, effective September 10, 1984, New Jersey
replaced its then extant Canons of Professional Ethics
149
and Disciplinary Rules with the more modern Rules of
Professional Conduct. Among these was RPC 1.8(f),
which then provided that
[a] lawyer shall not accept
compensation for representing a client
from one other than the client unless: (1)
the client consents after consultation; (2)
there is no interference with the lawyer's
independence of professional judgment or
[***25] with the lawyer-client
relationship and (3) information relating
to representation of a client is protected as
required by RPC 1.6.
Thereafter, starting in 2001 and continuing for
almost two years, New Jersey engaged in a "review [of]
the existing Rules of Professional Conduct in light of the
work of the American Bar Association's Commission on
Evaluation of the Rules of Professional Conduct (the
'Ethics 2000 Commission')." 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,
September 10, 2003. This process culminated in yet
another round of modifications to the Rules of
Professional Conduct. In respect of RPC 1.8(f), however,
only minor changes were made; 3 it now provides in full
as follows:
A lawyer shall not accept compensation
for representing a client from one other
than the client unless:
(1) the client gives
informed consent;
(2) there is no
interference with the
lawyer's independence of
professional judgment or
with the lawyer-client
relationship; and
(3) information
relating to representation
of a client is protected as
required by RPC 1.6.
3 Only two changes [***26] were made to RPC
1.8(f) in 2003, one substantive and one only as to
form. The substantive change appears in RPC
1.8(f)(1), which previously read "the client
consents after consultation" and now reads "the
client gives informed consent." As a matter of
form, RPC 1.8(f) originally appeared as a single,
continuous paragraph; in 2003, its appearance
was changed slightly so that each numbered
subsection was indented separately.
[*494] C.
However, RPC 1.8(f) does not exist in a vacuum:
two other RPCs directly touch on the question presented.
First, RPC 1.7(a) forbids a lawyer from representing a
client "if the representation involves a concurrent conflict
of interest." That RPC recognizes "[a] concurrent conflict
of interest . . . if: . . . there is a significant risk that the
representation of one or more clients [**1105] will be
materially limited by the lawyer's responsibilities to . . . a
third person or by a personal interest of the lawyer." RPC
1.7(a)(2). Second, RPC 5.4(c) provides that "[a] lawyer
shall not permit a person who recommends, employs, or
pays the lawyer to render legal services for another to
direct or regulate the lawyer's professional judgment in
rendering such legal services."
Our task, [***27] then, is to harmonize RPC's
1.7(a)(2), 1.8(f) and 5.4(c) seemingly overlapping
mandates so as to give proper guidance on whether, and
under what circumstances, a lawyer may represent a
client when the fees and costs incurred are being paid by
another.
D.
The starting point for analysis must be the RPC that
most specifically addresses the question of when a
lawyer can represent a client while being paid by
another: RPC 1.8(f). 4 That RPC [*495] makes clear that
three factors must coalesce in order to allow a lawyer
paid by a third party to represent a client: the client must
give informed consent; the lawyer's independent
professional judgment and the lawyer-client relationship
must be maintained sacrosanct; and no improper
disclosures relating or referring to the representation can
be made. However, the considerations that animate RPC
1.7(a)(2) --that there be no concurrent conflict of interest-and RPC 5.4(c) --that no third party may influence the
lawyer's professional judgment--also are relevant and
must be addressed.
4
Although we have sanctioned lawyers for
violating RPC 1.8(f), see In re Weiner, 188 N.J.
341, 907 A.2d 1004 (2006) (disbarring lawyer for,
among other claims, accepting compensation
[***28] from third party without protecting client
in violation of RPC 1.8(f)); In re Kalman, 177
N.J. 608, 832 A.2d 913 (2003) (prohibiting out-
150
of-state lawyer from appearing pro hac vice in
New Jersey courts for, among other claims,
accepting compensation from one other than the
client absent client consent, in violation of RPC
1.8(f)); In re Malat, 177 N.J. 506, 830 A.2d 499
(2003) (suspending lawyer for, among other
things, accepting compensation from someone
other than a client, in violation of RPC 1.8(f)); In
re Moeller, 177 N.J. 511, 512, 830 A.2d 911
(2003) (suspending lawyer for accepting
compensation from someone other than the client,
in violation of RPC 1.8(f)); In re Kiegel, 174 N.J.
299, 804 A.2d 1169 (2002) (admonishing lawyer
for improperly accepting of fee from third party,
in violation of RPC 1.8(f)), and we have referred
to that Rule when cited by our Advisory
Committee on Professional Ethics, see In re
Opinion 682 of the Advisory Comm. on Prof'l
Ethics, 147 N.J. 360, 364-65, 687 A.2d 1000
(1997), this Court has not had the opportunity to
squarely address how RPC 1.8(f) is to operate or
how it is to be interpreted. Our research discloses
that, nationally, the precedents are equally sparse.
See, e.g., In re Ray, 314 B.R. 643, 655
(Bankr.M.D.Tenn.2004) [***29] (quoting RPC
1.8(f) without discussion); Johnson v. Cont'l Cas.
Co., 57 Wn. App. 359, 788 P.2d 598, 600 (1990)
(citing RPC 1.8(f) as reference).
A synthesis of RPCs 1.7(a)(2), 1.8(f) and 5.4(c)
yields a salutary, yet practical principle: a lawyer may
represent a client but accept payment, directly or
indirectly, from a third party provided each of the six
conditions is satisfied. Those conditions are:
(1) The informed consent of the client is secured. In
this regard, "'[i]nformed consent' is defined as the
agreement by a person to a proposed course of conduct
after the lawyer has communicated adequate information
and explanation about the material risks of and
reasonably available alternatives to the proposed course
of conduct." Tax Auth., Inc. v. Jackson Hewitt, Inc., 187
N.J. 4, 19 n.2, 898 A.2d 512 (2006) (citation and internal
quotation marks omitted).
(2) The third-party payer is prohibited from, in any
way, directing, regulating or [**1106] interfering with
the lawyer's professional judgment in representing his
client. RPC 1.8(f)(2); RPC 5.4(c). See, e.g., In re Opinion
682 of the Advisory Comm. on Prof'l Ethics, 147 N.J.
360, 687 A.2d 1000 (1997) (holding, in part, that
formation [*496] of title insurance company owned and
[***30] managed by attorneys who would retain portion
of premiums paid by client as part of fee calls into
question lawyer's independent judgment).
(3) There cannot be any current attorney-client
relationship between the lawyer and the third-party
payer. 5 In re Garber, 95 N.J. 597, 607, 472 A.2d 566
(1984) ("It is patently unethical for a lawyer in a legal
proceeding to represent an individual whose interests are
adverse to another party whom the lawyer represents in
other matters, even if the two representations are not
related." (citations omitted)); see also RPC 1.7 (general
rule governing conflicts of interest).
5
Of course, all other Rules of Professional
Conduct governing conflicts of interest must be
observed. See, e.g., RPC 1.7 (stating general
conflict of interest rule); RPC 1.8 (addressing
conflict of interest with current clients and special
circumstances); RPC 1.9 (addressing conflicts of
interest in respect of former clients); RPC 1.10
(governing imputation of conflicts of interest);
RPC 1.11 (addressing conflicts arising from
successive government and private employment);
RPC 1.12 (addressing judicial and quasi-judicial
conflicts); RPC 1.13 (addressing conflicts arising
out of organizational [***31] clients).
(4) The lawyer is prohibited from communicating
with the third-party payer concerning the substance of
the representation of his client. RPC 1.8(f)(3). The
breadth of this prohibition includes, but is not limited to,
the careful and conscientious redaction of all detail from
any billings submitted to the third-party payer.
(5) The third-party payer shall process and pay all
such invoices within the regular course of its business,
consistent with manner, speed and frequency it pays its
own counsel.
(6) Once a third-party payer commits to pay for the
representation of another, the third-party payer shall not
be relieved of its continuing obligations to pay without
leave of court brought on prior written notice to the
lawyer and the client. In such an application, the thirdparty payer shall bear the burden of proving that its
obligation to continue to pay for the representation
should cease; the fact that the lawyer and the client have
[*497] elected to pursue a course of conduct deemed in
the client's best interests but disadvantageous to the thirdparty payer shall not be sufficient reason to discontinue
the third-party payer's continuing obligation of payment.
If a third-party payer [***32] fails to pay an employee's
legal fees and expenses when due, the employee shall
have the right, via a summary action, for an order to
show cause why the third-party payer should not be
ordered to pay those fees and expenses.
E.
We now apply this principle, and its conditions, to
the case on appeal.
Informed consent. Each of the letters from the
151
company to the individual employees provided that the
employee "d[id] not have to use [the assigned counsel] as
your attorney. You are free to hire your own attorney, at
your own costs." As conceded by counsel for the
company during oral argument, that "take-it-or-leave-it"
approach, on its face, does not satisfy the requirement
that the employee's acceptance of counsel be based on
informed consent. Therefore, presumptively, the
retention of counsel here does not comply with RPC
1.8(f)(1). However, as acknowledged by the trial court,
each of the employees [**1107] certified that he was
satisfied with the assigned counsel and wished to remain
as that counsel's client. Therefore, we conclude that the
arrangement approved by the trial court below is
satisfactory, albeit with the caveat that, in the future, no
such limitations on the choice of counsel should [***33]
be communicated or imposed on the employee/client
save for reasonable limitations on fees and expenses.
Interference with the lawyer's professional
judgment. As clearly set forth in the separate retention
letters between the lawyers and the company, each of the
lawyers explained that "the sole professional obligation
of [the] law firm will be to [the assigned client]." For the
avoidance of future doubt, such retention letters should
clearly and conspicuously note that nothing in [*498]
the representation shall limit the lawyer's responsibilities
to the client, as provided in RPC 1.8(f)(2), and that the
third-party payer shall not, in any way, seek to "direct or
regulate the lawyer's professional judgment in rendering
such legal services." RPC 5.4(c).
Current representation. The record is clear that none
of the lawyers selected to represent the individual
employees had any current relationship with the
company, and that "no professional relationship will arise
between the [c]ompany and [the] law firm as a result of
the rendering of legal services by [the assigned lawyer]
or the payment of legal fees and expenses by the
[c]ompany." Those facts, standing alone, constitute a
sufficient showing [***34] in favor of permitting this
representation. Again, as an aid in future matters, the
retention letters should clearly spell out that the lawyer
does not have a professional relationship with the thirdparty payer.
letters made clear that the lawyer "is not required to
disclose any legal strategy, theory, plan of action, or the
like, to the [c]ompany and payment of legal fees by the
[c]ompany to [the] law firm in no way depends upon any
such disclosure." In this respect, the better practice is to
affirmatively state that the lawyer will not disclose any
part of the substance of the representation of the client to
the third-party payer. Consistent with that representation,
all billings from the lawyer to the third-party payer must
have any detail information redacted, simply stating the
sum due for services rendered and the sum due for
expenses incurred. Because these latter conditions were
imposed by the trial court, the retention letters, as
modified by the trial court, clearly comply with the
requirements we have imposed.
Prompt and continued payment. Once an employer
commits to paying the legal fees and expenses of its
employees, it scrupulously [***35] must honor that
commitment. Also, if the employer wishes to discontinue
paying the legal fees and expenses of one or more of its
employees, it may only do so by leave of court granted.
[*499] Because this condition also was imposed by the
trial court and was agreed to by all parties, the
arrangements at issue are satisfactory.
In sum, through the combined product of the good
faith of an employer, the diligence of competent counsel
and the exercise of a trial court's supervisory authority,
the net result of the company's retention and payment of
counsel for its employees complies with the Rules of
Professional Conduct. For these reasons, the trial court
properly denied the State's motion to disqualify counsel.
IV.
The order of the Law Division denying the State's
motion to disqualify the counsel retained to represent the
company's employees before the grand jury is affirmed.
[**1108]
JUSTICES LONG, LaVECCHIA,
ALBIN, WALLACE, and HOENS join in JUSTICE
RIVERA-SOTO's opinion. CHIEF JUSTICE RABNER
did not participate.
Prohibited communications. Each of the retention
152
ELLEN M. CASEY, Plaintiff-Respondent, v. UNIVERSITY OF MEDICINE AND
DENTISTRY OF NEW JERSEY, DENISE MULKERN AND MARYANN
MASTER, Defendants-Appellants.
DOCKET NO. A-1997-09T1
SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
2010 N.J. Super. Unpub. LEXIS 1866
April 27, 2010, Argued
August 3, 2010, Decided
NOTICE:
NOT FOR PUBLICATION WITHOUT
THE APPROVAL OF THE APPELLATE DIVISION.
PLEASE CONSULT NEW JERSEY RULE 1:36-3
FOR CITATION OF UNPUBLISHED OPINIONS.
PRIOR HISTORY: [*1]
On appeal from Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-3657-07.
COUNSEL: Ronald J. Riccio argued the cause for
appellants (McElroy, Deutsch, Mulvaney & Carpenter,
attorneys; Mr. Riccio, John J. Peirano and Vimal K.
Shah, of counsel and on the brief; Michelle A. Annese,
on the brief).
Paul P. Josephson argued the cause for respondent (Hill
Wallack, attorneys; Mr. Josephson of counsel and on the
brief; Eric I. Abraham and Christina L. Saveriano, on the
brief).
JUDGES: Before Judges Wefing, Grall and LeWinn.
OPINION
PER CURIAM
This is an interlocutory appeal from an order of
disqualification based on an alleged violation of the
Rules of Professional Conduct (RPC), specifically RPC
1.9. RPC 1.9 is not implicated unless the party seeking
disqualification is a "former client" of the lawyer or a
member of the lawyer's firm. Because this record does
not permit a finding of the essential attorney-client
relationship between the plaintiff and defendants'
lawyers, we reverse.
Plaintiff Ellen M. Casey, a member of the New
Jersey bar who has practiced in the public and private
sectors, is the former Executive Director of Materials
Management for defendant University of Medicine and
Dentistry of [*2] New Jersey (UMDNJ). One year after
her employment was terminated, Casey filed a complaint
charging UMDNJ and the individual defendants, who are
UMDNJ's Senior Vice Presidents for Finance and
Administration and Human Resources, with wrongful
termination and violation of the Conscientious Employee
Protection Act, N.J.S.A. 34:19-1 to -8. The factual basis
for Casey's claims is that she was terminated for bringing
improprieties in the spending practices UMDNJ
employed to the attention of UMDNJ personnel, an
independent monitor appointed by UMDNJ, a monitor
appointed by the Federal District Court under a deferred
prosecution agreement between UMDNJ and the United
States Attorney for the District of New Jersey, and the
Star Ledger. 1
1
The specific transactions and practices
referenced in Casey's complaint involve a
Verizon contract, the underfunding of UMDNJ's
purchasing department, expenditures on
limousine services, and UMDNJ's selection
between UHC/Novation and GYNHA as its
"group purchasing partner."
Although the Attorney General filed an answer on
behalf of UMDNJ, within two months UMDNJ retained
McElroy, Deutsch, Mulvaney & Carpenter (MDMC) to
defend against Casey's claims. MDMC is [*3] the law
firm disqualified from representing UMDNJ under the
terms of the order that is the subject of this appeal.
Casey alerted MDMC to her objection to its
representation of UMDNJ in her employment litigation
soon after the firm was retained by UMDNJ. On
September 21, 2007, Casey urged MDMC to withdraw
because she "was interviewed by Walter Timpone," a
member of MDMC, "in the context of an SCI [State
Commission of Investigation] investigation of UMDNJ"
on October 19, 2005. On October 2, 2007, Casey sought
discovery of documents "setting forth the scope of
[MDMC's] representation of [Casey] and/or UMDNJ,"
and MDMC advised that it had no pertinent documents.
On November 20, 2007, Casey's attorney confirmed
153
her willingness to "hold her objections to [MDMC's]
conflict of interest in abeyance," if UMDNJ was willing
to "seriously mediate."
Mediation was not successful, and in April 2008,
Casey again sought documents "setting forth the scope of
[MDMC's] representation of [Casey] and/or UMDNJ . . .
." MDMC again advised that there were no documents.
Nonetheless, on September 12, 2009, MDMC produced
correspondence written by Timpone discussing MDMC's
relationship with the employees of UMDNJ [*4] in
connection with a federal investigation of UMDNJ.
Within two weeks of that disclosure, on September 25,
2009, Casey moved to disqualify the firm. Two days
before the motion was heard, MDMC provided additional
discovery.
On October 16, 2009, the judge entered an order
disqualifying MDMC, giving UMDNJ thirty days to
secure new representation, imposing sanctions, reopening
discovery for a period of ninety days and adjourning the
trial on Casey's termination claims that was scheduled for
November 9, 2009. The judge stayed the order to permit
UMDNJ to seek interlocutory review.
MDMC filed a motion for leave to appeal on behalf
of UMDNJ, which we granted on December 30, 2009.
We also granted UMDNJ's motion to supplement the
record with additional discoverable material previously
overlooked by MDMC -- a letter of June 25, 2005
confirming MDMC's retention "to provide assistance to
[UMDNJ] regarding [an] SCI investigation." MDMC
agreed to the arrangement. 2
2 On the day prior to oral argument in this court,
the Supreme Court issued its opinion in City of
Atl. City v. Trupos, 201 N.J. 447, 992 A.2d 762
(2010). The parties were given an opportunity to
file supplemental briefs addressing the new
decision; we [*5] received the briefs on May 3
and 4, 2010.
The evidential materials disclose the following facts
relevant to Casey's motion to disqualify MDMC from
defending UMDNJ in her action alleging wrongful
termination.
UMDNJ retained MDMC in June 2005 "to provide
assistance" with the SCI investigation. The SCI
subpoenaed employees of UMDNJ. Timpone of MDMC
corresponded with the SCI to schedule the appearances
of those three UMDNJ employees. The scheduling letters
all refer to three employees; one of the three is Casey.
Casey did not ask Timpone to schedule her appearance.
The day prior to Casey's testimony before the SCI,
she met with Timpone. Robert Scrivo, a second MDMC
attorney, was present during Casey's interview and took
notes. According to Casey, she was "directed by UMDNJ
management . . . to meet" with Timpone prior to
testifying before the SCI. The record does not include
any correspondence between Timpone and Casey, and
Casey does not assert that they had any communication
before or after her interview.
Casey "believed that [her] conversation with
[Timpone] was a confidential conversation with [her]
attorney." According to Timpone and Scrivo, at the
outset of the interview, Timpone told [*6] Casey he was
representing UMDNJ and not representing her. Casey
initially certified that she did not recall Timpone saying
that; in a subsequent certification, however, she said that
neither Timpone nor anyone else ever informed her that
Timpone was not representing her. Casey did not certify
that she was told that Timpone was her lawyer. Scrivo's
notes of the interview shed no light on the subject. As
Casey confirmed during her deposition, however,
Scrivo's notes reflect that she told Timpone about her
work experience in the legal field.
In certifications submitted to the trial judge,
Timpone explained that the purpose of the interview was
to learn what information Casey expected to convey
during her testimony and inform her about what to expect
during her appearance. Timpone told Casey that
"pursuant to SCI practices, he would not be permitted to
be present in the room during [her] testimony, but that
[she] could take a break and it would be possible to ask
to speak to him" at that time. There is nothing in the
record that indicates that Casey took a break or spoke to
one of the lawyers from MDMC during her testimony.
While MDMC was retained in connection with the
SCI investigation, [*7] Timpone was also providing
legal services in connection with an investigation
conducted by the United States Attorney for the District
of New Jersey. In that capacity, Timpone wrote to the
Assistant United States Attorney (AUSA) and to the
employees of UMDNJ describing the relationship
between MDMC and the employees of UMDNJ.
In a letter dated October 5, 2005 to the AUSA,
Timpone wrote:
Please accept this letter as a summary of
a conversation I had with you last week
concerning our representation of UMDNJ
and its employees. I understand that prior
counsel may have taken the position that
they represented the University and not
the employees. We have revisited the
issue. We represent the University and its
employees. Each employee you have
selected to appear before the grand jury is
told that we represent the University and
that any privilege that envelops the
conversation is held by the University.
154
In instances where the government
may believe a conflict exists, we will
consider obtaining separate counsel for
the witness once the issue is brought to
our attention.
Since these witnesses are
"represented parties," I would ask that
any contacts made by the government and
its agents come through [*8] this firm.
Both Robert Scrivo and I intend to be
cooperative in making witnesses
accessible to you in preparation for the
grand jury sessions. Scheduling the
witnesses, however, should come through
us.
[(Emphasis added).]
In a second letter to the AUSA dated October 21,
2005, Timpone wrote "[i]n accordance with the [RPC],
[MDMC] represent[s] the University and its employees
in this investigation." (emphasis added).
In a letter to the employees of UMDNJ dated
October 26, 2005, Timpone identified himself as a
member of the firm and "outside counsel for UMDNJ
and its employees." (emphasis added). He alerted the
employees that "law enforcement" was visiting
employees at home, and he informed them that, at the
request of an employee, MDMC would arrange for a
lawyer to be present for an "interview and at the grand
jury."
Casey does not assert that she saw or was aware of
any of the foregoing correspondence, and there is nothing
in the record indicating that she appeared before the
grand jury. At oral argument, Casey's attorney confirmed
that Casey was not claiming that she was aware of the
correspondence.
Without the benefit of testimony and on the basis of
the certifications, deposition testimony
[*9] and
correspondence discussed above, the trial judge
determined that MDMC, through Timpone, represented
Casey during the interview before her SCI appearance.
The only documentary evidence that the trial judge did
not have is the letter confirming MDMC's representation
of UMDNJ in connection with the SCI investigation.
The judge noted that the evidence relevant to the
attorney-client relationship consisted of Casey's
certification, the conflicting certifications of Timpone
and Scrivo and the letters from Timpone to the AUSA
stating that he represented UMDNJ and its employees.
The judge viewed those letters as the "clincher," and he
concluded that Casey's belief that Timpone was
representing her was reasonable.
Our review of a trial court's decision to disqualify an
attorney is de novo and plenary. City of Atl. City v.
Trupos, 201 N.J. 447, 463, 992 A.2d 762 (2010); J.G.
Ries & Sons, Inc. v. Spectraserv, Inc., 384 N.J. Super.
216, 222, 894 A.2d 681 (App. Div. 2006); State v. Bruno,
323 N.J. Super. 322, 331, 732 A.2d 1136 (App. Div.
1999). "[A] lawyer's duty to a former client is addressed
by RPC 1.9." City of Atl. City, supra, 201 N.J. at 461.
"[RPC 1.9] provides straightforwardly that '[a] lawyer
who has represented a client in [*10] a matter shall not
thereafter represent another client in the same or
substantially related matter in which that client's interests
are materially adverse to the interests of the former
client[.]'" Id. at 462 (quoting RPC 1.9(a)).
To state the obvious, RPC 1.9(a) has no relevance
unless the party seeking disqualification is a "former
client." The "initial burden of production" on the
question of former representation is on the party seeking
to disqualify its adversary's attorney. Id. at 462; Dewey v.
R.J. Reynolds Tobacco Co., 109 N.J. 201, 221-22, 536
A.2d 243 (1988). The burden of persuasion on that issue
remains with the moving party throughout. City of Atl.
City, supra, 201 N.J. at 463. We cannot conclude that
Casey met that burden.
A motion to disqualify "should ordinarily be decided
on the affidavits and documentary evidence submitted,
and an evidentiary hearing should be held only when the
court cannot with confidence decide the issue on the
basis of the information contained in those papers . . . ."
Ibid. (quoting Dewey, supra, 109 N.J. at 222). Illustrative
of cases requiring testimony are those where "gaps" in
the documentary evidence "must be filled" or when a
finding turns on a "question
[*11] of witness
credibility." Ibid.
In this case, an order of disqualification could not be
entered without assessing the relative credibility of
Timpone's and Scrivo's assertions that Timpone told
Casey MDMC was representing UMDNJ, not her, and
Casey's denial. If information clarifying that MDMC had
no attorney-client relationship with Casey was conveyed
to her at the outset of the interview, then Casey's belief
that Timpone was representing her could not be deemed
"reasonable."
Legal representation is "'inherently an aware,
consensual relationship,' one which is founded upon the
lawyer affirmatively accepting a professional
responsibility." In re Palmieri, 76 N.J. 51, 58-59, 385
A.2d 856 (1978) (agreeing with the respondent's
characterization of the relationship). While the attorney's
acceptance of professional responsibility to the client
need not be expressly articulated, when it is not
articulated, there must be conduct on the part of the
158
parties to the purported attorney-client relationship that
gives rise to that inference. Id. at 59-60.
An attorney-client relationship may be found by
implication based upon conduct when:
(1) a person manifests to a lawyer the
person's intent that the lawyer provide
[*12] legal services for the person; and
either
(a) the lawyer manifests to the person
consent to do so; or
(b) the lawyer fails to manifest lack
of consent to do so, and the lawyer knows
or reasonably should know that the person
reasonably relies on the lawyer to provide
the services[.]
[Herbert v. Haytaian, 292 N.J. Super.
426, 436-37, 678 A.2d 1183 (App. Div.
1996) (quoting The Restatement of the
Law Governing Lawyers (Proposed Final
Draft No. 1) § 26 (1996)).]
In the context of an employee of an organization that
is represented by an attorney, RPC 1.13 provides a
special rule. Pursuant to paragraph (a) of that rule, an
attorney "retained to represent an organization represents
the organization" not its employees. Nonetheless,
pursuant to paragraph (d) of RPC 1.13, an attorney
representing an organization must "explain the identity of
the client when the lawyer believes that such explanation
is necessary to avoid misunderstanding on [the] part" of
an employee of the organization.
Without testimony permitting the judge to reject, as
not credible, Timpone's and Scrivo's assertions that
Casey was told Timpone was representing UMDNJ and
not her, the judge could not infer an attorney-client
relationship arising [*13] by implication from conduct or
a breach of the obligation imposed by RPC 1.13(d). If
Timpone advised Casey that UMDNJ, not Casey, was
MDMC's client, then any conduct implying otherwise,
short of retraction, could not defeat Timpone's express
denial of the acceptance of any professional
responsibility as to Casey. See Home Care Indus., Inc. v.
Murray, 154 F. Supp. 2d 861, 869 (D.N.J. 2001) (noting
that the firm could have protected its position by
revealing its loyalty was to the corporate client).
Moreover, if Timpone identified his client, then he fully
complied with any special obligation that he might owe
pursuant to paragraph (d) of RPC 1.13. Viewed without
reference to the information Timpone and Scrivo contend
that Casey was given, Casey's voicing of criticisms and
praise of individuals she had encountered while working
at UMDNJ arguably gives reason to question whether
Casey, despite her credentials as a lawyer, actually
understood RPC 1.13. Cf. Ferranti Int'l PLC v. Clark,
767 F. Supp. 670, 671-72 (E.D. Pa. 1991) (considering
that the employee was an attorney in concluding that the
employee's belief that he had an attorney-client
relationship with a firm representing the corporation
[*14] was unreasonable); Home Care Indus., supra, 154
F. Supp. 2d at 869 (noting that the employee in Home
Care was not an attorney and distinguishing Ferranti). If
Timpone explained the identity of his client, however, no
further action on his part was required by RPC 1.13(d),
and any contrary misunderstanding entertained by Casey
was not reasonable.
The trial judge's decision can be understood to
suggest that the credibility of Timpone's and Scrivo's
assertions about what Timpone told Casey was wholly
undermined by Timpone's correspondence with the
AUSA about the federal investigation. That conclusion,
however, is at odds with the record. One might infer that
Timpone's letter to the AUSA was an unjustified attempt
to expand the scope of the AUSA's obligations under
RPC 4.2 and 4.3 beyond the scope of RPC 1.13(a), but
Timpone's letter does not reflect any ambivalence or
inconsistency relevant to the question of import here,
which is the identity of the party who enjoyed MDMC's
loyalty and held the privilege of confidentiality. In that
regard, Timpone gave the AUSA information that is
substantially the same as the information he claims to
have given Casey. He informed the AUSA: "Each
employee [*15] you have selected to appear before the
grand jury is told that we represent the University and
that any privilege that envelops the conversation is held
by the University."
For the foregoing reasons, we conclude that the
order of disqualification was entered without conducting
an evidentiary hearing that is essential to the preliminary
question of Casey's status as a former client of MDMC.
Accordingly, reversal of the trial judge's order and
remand for an evidentiary hearing are required.
We decline to address the remaining question critical
to the applicability of RPC 1.9, which is whether Casey's
action based on a claim of wrongful termination is
"substantially related" to the SCI investigation. The
Supreme Court's decision in City of Atlantic City, which
was issued while this appeal was pending, now controls
that determination. Accordingly, if there is still a need to
determine whether these matters are "substantially
related" after a hearing on the issue of former
representation, then the parties should have an
opportunity to argue the point to the trial court with
careful reference to the evidential materials submitted on
the motion and the standard established in City of
Atlantic [*16] City.
The parties have presented additional arguments
159
with respect to the timing of Casey's application. Both
urge us to consider the other's litigation conduct in
addressing UMDNJ's claim that Casey waived the right
to seek disqualification. On UMDNJ's side there are
discovery oversights that are, at best, not easily
understood. On Casey's side, there is the willingness to
set the question of conflict aside during negotiations that
is, at best, difficult to understand given that most of the
relevant information was within her personal knowledge
and that she was willing to proceed to mediation without
resolving the question of conflict.
The trial judge did not address the issue, and we
deem it improvident to address waiver before the
question of Casey's status as a former client is resolved.
In the event it is necessary to resolve the issue, Rohm &
Haas Co. v. American Cyanamid Co., 187 F. Supp. 2d
221, 229-30 (D.N.J. 2001) is informative. Rohm
identifies the factors relevant to waiver of a claim for
disqualification, which include the length of the delay,
reasons for the delay and prejudice to the non-moving
party. Id. at 229. Rohm also explains that the "essence"
of the inquiry is [*17] whether the delay is a "tactical
maneuver." Id. at 229-30.
Reversed and remanded for further proceedings in
conformity with this decision. We do not retain
jurisdiction.
160
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NUMBER
OPERATING PROCEDURES
NEW JERSEY DEPARTMENT OF LAW AND PUBLIC SAFETY
PAGE
SUBJECT
Use of Social Media For
Official Purposes and Use
of Personal Social Media by
Department Emglovees
EFFECTIVE DATE
May 23, 2016
1
a;
7
APPROVED BY
~'
(Authorized S+gr~ahire)
I. AUTHORITY:
Pursuant to N.J.S.A. § 52:17B-1 et seq., and Executive Directive #1986-1, the Attorney General has
established the following policy for the use of social media.
II. PURPOSE:
To establish a policy for the use of social media by Department of Law and Public Safety (Department)
employees, interns, volunteers, agencies, and contractors for official purposes and for the use of personal
social media by Department employees. This policy supplements New Jersey Office of Information
Technology (NJOTT) Circulars No. 14-30, Acceptable Internet Usage, and No. 14-04-51, Disclaimer
Policy.
III.APPLICABILITY
A. This policy applies to all divisions, agencies, commissions, and offices under the supervision of
the Attorney General. Agencies allotted to the Department to fulfill the purposes of N.J. Const.
Art. 5, Sec. 4, Par. 1 and not subject to the supervision of the Attorney General may elect to
implement this policy.
B. This policy applies to social media created and maintained by the Department or a contractor of
the Department, to the use of social media created or maintained by third parties for an official
Department purpose, and to the personal use of social media by Department employees. The
policy extends to all use of social media platforms that affects the workplace, including access
using a personal device.
C. Compliance with this policy shall be required when contracting with third parties, including
contractors, vendors, consultants, and others who develop and administer social media or social
media platforms for the Department.
D. Where this policy is inconsistent with provisions in a collective bargaining agreement, the
provisions in the agreement control.
IV. llTi~'INITIONS
A. Bloc: (shorthand for web log) is a website with discrete posts containing commentary,
descriptions of events, or other information or content using graphics or videos.
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OPERATING PROCEDURES
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NUMBER
NEW JERSEY DEPARTMENT OF LAW AND PUBLIC SAFETY
PAGE
SUBJECT
Use of Social Media For
Official Purposes and Use
of Personal Social Media by
Department Emalovees
EFFECTIVE DATE
2
0~
I APPROVED BY
May 23, 2016
Signafure)
B. Moderator: An authorized Department employee or contractor who reviews, approves, and
allows content submitted by Department and public commenters to be posted to a Department
blog or other social media platform. The moderator must be authorized to act in that capacity by
a supervisor.
C. Posting or Post: Any information or content published on social media or a website. Also refers
to the act of publishing information or content on a website. For purposes of this SOP, a "like" or
similar notation is a posting or post.
D. Social Media or Social Media Platform: Social media is a category of Internet-based resources
that integrate user-generated content and user participation. Users of social media share
information, ideas, personal messages, and other content. A social media platform is a program,
tool, or channel that facilitates the electronic communication. Examples of social media and
social media platforms are social networking sites like Facebook and LinkdIn, micro bloggin~
sites like Twitter, photo and video sharing sites like Instagram and YouTube, wikis like
Wikipedia, and news sites like Digg and Reddit.
E. Web Site or Website: A group of World Wide Web pages, usually joined by hyperlinks, and
containing information about a person, company, educational institution, government, or
organization.
V. PUBLIC SOCIAL MEDIA PLATFORMS CREATED, MAINTAINED, OR USED BY THE
DEPARTMENT
A Department agency may create, maintain, or use social media or a social media web site to advance
the mission of the agency or the Department. Examples of acceptable uses of social media are to
disseminate information to the public quickly in an emergency, to distribute public service information
to a wide audience, to give access to the public to report time-sensitive information to law enforcement
agencies and for law enforcement and investigative purposes.
A. Procedures.
The agency Director and the Director of the Department Office of Information
Technology (Department IT) must approve the use of social media sites or pages for•
official purposes in advance of implementation.
2. An agency shall document for the Department TT Director or designee that it has obtained
the required registration ox registrations for its use of social media and that it has
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I NUMBER
OPERATING PROCEDURES
NEW JERSEY DEPARTMENT OF LAW AND PUBLIC SAFETY
PAGE
SUBJECT
Use of Social Media For
Official Purposes and Use
of Personal Social Media by
Department Employees
EFFECTIVE DATE
3
cif
~
APPROVED BY
May 23, 2016
(c thorized Signature)
n
provided for logging and preserving content and comments in compliance with
Department and agency policies for records retention. The plan for preserving content
and comments must be adequate to enable responses to public information requests and
retrieval of the information for other purposes such as litigation and discovery. The
Department IT Director or designee will keep a list of current registrations, authorized
users, logins, usernames, passwords, and email addresses.
3. A Department agency that uses a social media platform operated by a third party, such as
Facebook or Twitter, must disable functions that allow the unsecure transfer of data. or
links such as file exchanges and instant messaging. The agency must regularly check the
social media platform's privacy .policies and updates to its software for consistency with
the agency's business purpose and for adequate protection of confidential agency
information.
4. The social media platform must comply with all Department and NJOIT policies and
standards. NJOIT policies are available at the NJOIT webpage:
http://www.state.nj.us/it/ps/.
5. The agency shall post on the platform a link or links to the Department's disclaimer
statements as required under NJOIT Circular No. 14-04-51.
B. Comment Policy for Department Social Media Platforms and Notice
1. If the social media platform allows users to post comments, the agency must assign an
employee or use a third party contractor to moderate and maintain the platform. The
moderator must review comments on a regular basis.
2. A supervisor must be given access to the social media platform to monitor the site as
needed to ensure compliance with this Standard Operating Procedure.
3. The agency shall post a comment moderation policy for the removal of comments that
are:
i.
ii.
iii.
iv.
v.
vi.
Not directly related to the purpose and topical scope of the page.
Obscene.
Child pornography.
Incitement to imminent lawless action.
Speech presenting a grave and imminent threat.
Fighting words.
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OPERATING PROCEDURES
N~~r~;~~r:F~
1-2016
NEW JERSEY DEPARTMENT OF LAW AND PUBLIC SAFETY
SUBJECT
EFFECTIVE DATE
APPROVED BY
Use of Social Media For
Official Purposes and Use
May 23, 2016
of Personal Social Media by
~ ,t hor;Zed s;ynarure}
De artment Em to ees
vii.
(/
v
viii. True threats.
ix. Fraud.
x. Defamation (libel/slander).
xi. Solicitations to commit, or speech integral to, criminal conduct.
xii. Promotions or advertisements of business or commercial transactions.
xiii. Copyrighted materials (if posted without the copyright holder's consent).
xiv. In violation of any local, state, or federal law.
4. Robo-spam and comments posted by automatic software programs (known as "bots")
will be removed if necessary to ensure access for the general public.
5. An agency's comment policy should make clear that the Department is not responsible
for, and neither endorses nor opposes, comments placed on the social media plat#'orm by
visitors to it. The comment policy should give notice that commenters are personally
responsible for their own comments, username, or any information placed on the page by
a commenter.
C. Department Social Media Platforms as Extensions of the Work 1p ace
1. Department social media platforms are an extension of the workplace. An employee
acting in his or her official capacity must explicitly identify him or herself as an
employee of the Department. An employee who administers, posts, comments, or
otherwise interacts on social media in an official capacity is expected to maintain a
professional demeanor, and to comply with workplace conduct requirements including
prohibitions against discrimination and harassment, workplace violence prevention, and
ethics requirements. Employees must exercise the same care in posting information on
social media in an official capacity as they would with any external communication.
2. Content and comments posted to a Department social media platform may be public
records subject to the Open Public Records Act, N.J.S.A. 47:1A-1, et seq•
3. Comments submitted for posting, whether approved. for posting or blocked, and content
on an official social media page or web site are subject~to State and Department policies
for control, use, retention, and destruction of records. The agency must provide for
storage of the comments and content for the applicable period under those policies.
4. There is no expectation of privacy in information submitted to or posted on the social
media platform by an employee or any other person.
164
t,~,`:~'-~s ,
OPERATING PROCEDURES
1-2016
NEW JERSEY DEPARTMENT OF LAW AND PUBLIC SAFETY
PAGE
SUBJECT
Use of Social Media For
Official Purposes and Use
of Personal Social Media by
De artment Em to ees
EFFECTIVE DATE
5
i~t
7
APPROVED BY
May 23, 2016
( horized Signature)
U
v
5. An agency or Department employee acting in an official capacity shall not post
photographs or tag members of the public or other employees in photographs without
prior approval by a supervisor. Where possible, the agency or Department employee
shall first request permission from the persons) in the photograph.
6. Department social media shall not contain non-public, confidential, or proprietary
information of the State, Department, clients, vendors, or members of the public.
VI.PERSONAL SOCIAL MEDIA USE BY DEPARTMENT EMPLOYEES
A. Department employees may not use social media in their personal capacities in any way that
negatively affects the workplace or the employee's public employment in violation of workplace
or public employment standards of conduct, including, but not limited to, the Department
Standards of Conduct, Workplace Violence Prevention SOP, the Conflict of Interests Law,
Uniform Ethics Code and the State Policy Prohibiting Discrimination in the Workplace. Any
such use can result in a direcfiive to cease the activity or disciplinaxy action or both.
B. If a Department employee has self-identified as an employee of the State, the Department, or
agency, or his or her employment status would be apparent to a reader of a blog, comment, or
other posting, the employee must include a disclaimer that states any opinions expressed are
personal and not those of the Attorney General, the State, the Department, or the agency.
C. A Department employee who uses social media in a personal capacity shall not:
1. Disclose non-public, confidential, or proprietary information of the government, clients,
vendors, or members of the public gained through his or her employment; or
2. Use the Department or agency logo, trademarks, State seal, or other official State symbol.
D. A Department employee's use of social media in a personal capacity to interact with clients,
adverse parties, vendors, court personnel including judges, and others may present a conflict of
interest or may be perceived as a conflict of interest or violate ethics rules. An employee who
has or expects to have this kind of interaction should consult with the Department or agency
ethics officer before proceeding.
E. No Department or agency manager or supervisor shall ask a current or prospective employee for
his or her user name or password to a personal account used exclusively for personal electronic
communications unrelated to a business purpose of the Department or agency.
165
OPERATING PROCEDURES
1-2016
t~,~ur~;~t~~~„
NEW JERSEY DEPARTMENT OF LAW AND PUBLIC SAFETY
PAGE
SUBJECT
Use of Social Media For
Official Purposes and Use
of Personal Social Media by
Department Emalovees
VII.
6
of
7
EFFECTIVE DATE I APPROVED BY
May 23, 2016
7
Signature)
RULES OF PROFESSIONAL CONDUCT
Department attorneys and legal support staff must comply with the New Jersey Rules of Professional
Conduct (RPCs) when use of social media affects the work of the Department. The RPCs may be
implicated under the following examples, which are not all-inclusive. Attorneys and legal support staff
should seek assistance from the Department or agency ethics officer in circumstances that may implicate
the RPCs.
A. Ex parte communication with a judge.
B. A judge is a "friend" or is otherwise "connected" to the attorney on the attorney's personal social
media page, and a matter involving the State, the Department, the agency, or the attorney or legal
support staff comes before the judge. The judge's "friend" or "connected" status could be
perceived as a conflict of interest.
C. "Friending" or "connecting" a client, former client, or party. That status could be perceived as a
conflict of interest.
D. Communication with a person who is represented by counsel.
E. Communication with a person who is not represented about any legal matter or potential legal
matter, including initiating contact for the purpose of gaining information related to a legal
matter that would not otherwise be public.
F. Reviewing information obtained from social media for purposes related to voir dire of potential
and sitting jurors.
G. Sharing confidential information about strategy, investigatory materials, or other confidential
information about a legal matter, client, or a member of the public on a social media platform.
VIII. CONSCIENTIOUS EMPLOYEE PROTECTION ACT (CI+,PA)
A. The Conscientious Employee Protection Act (CEPA or Whistleblower Act), N.J.S.A. 34:19-1, et
sec ., protects an employee from retaliation for disclosing an activity, policy, or practice of an
employer that the employee reasonably believes violates a law or rule or is fraudulent or
criminal. Department SOP 2-11, Conscientious Employee Act, Section V.A., defines protected
disclosures more Fully and provides a process for the Department to address such disclosures.
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OPERATING PROCEDURES
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1-2016
NUMBER
NEW JERSEY DEPARTMENT OF LAW AND PUBLIC SAFETY
M
e ~~i
-~~~:;
PAGE
SUBJECT
Use of Social Media For
Official Purposes and Use
of Personal Social Media by
De artment Em to ees
EFFECTIVE DATE
~
of
~
APPROVED BY
May 23, 2016
uthorized Signature)
B. An employee's communication on a State or personal social media platform could be a
disclosure that is protected under CEPA.
C. A supervisor who becomes aware of a disclosure that may be protected is responsible to ensure
that the disclosure is submitted in writing to the Administrator.
IX. VIOLATION, PENALTY
An employee violating this policy may be subject to disciplinary action.
167