When Conflict Is Not A Conflict

The New Jersey Appellate Division affirmed a criminal conviction

In his appeal from his conviction of third-degree burglary, N.J.S.A. 2C:18-2(a)(1), and fourth-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1), defendant raises, as plain error, issues regarding the court’s jury instructions and police witnesses’ identification-related testimony. These contentions lack merit and warrant only brief comment. We address at greater length defendant’s argument that he must be resentenced because of a breakdown in his relationship with his trial counsel. A defendant is entitled to conflict-free representation. But, he may not profit from undermining his attorney-client relationship through his own abusive or threatening conduct. Despite defendant’s insults and threats, defense counsel wished to proceed, as did defendant. We discern no basis for resentencing. Therefore, we affirm the conviction and sentence.

The breakdown

At the sentencing hearing, defense counsel disclosed to the court that his relationship with defendant had deteriorated to the point that defendant had threatened to harm him. Defendant confirmed the strain in the relationship, stating he was “done playing” with his attorney.

The colloquy proceeded as follows:

[DEFENSE COUNSEL]: Judge, I made an attempt to review the Pre-Sentence Report with Mr. Coclough. Unfortunately, after going through one page, he made disparaging remarks both anti-Semitic and homophobic, became irate in the jury room, and let’s not beat around the bush, threatened me, and knows where I live.

So I attempted to get through it. But I’m ready to proceed.

COCLOUGH: Me too.

THE COURT: Hang on. That’s a lot for me to digest.

I have to think about that for a minute. Are you prepared to proceed for sentencing, Mr. Coclough?

COCLOUGH: Yes, I am.

THE COURT: With Mr. –

COCLOUGH: I’m done playing with him.

THE COURT: — with [defense counsel] as your attorney?

COCLOUGH: Yes.

THE COURT: Are you ready to proceed, [defense counsel]?

[DEFENSE COUNSEL]: Not a problem, Judge.

THE COURT: Do you want to also?

[DEFENSE COUNSEL]: Not a problem.

The court then proceeded with the sentencing hearing. Defense counsel argued successfully against the State’s motion for an extended term. Once given an opportunity to speak, defendant aired grievances against the prosecutor, his probation officer, his co-defendant, and defense counsel. Admitting that he was the man depicted in the video, he complained that his attorney told him not to take the stand and did not subpoena a witness defendant requested. The court then imposed the sentence we have already described.

Done playing

That defendant had a conflict with his attorney does not necessarily mean his attorney had a conflict of interest. Cf. Miller, 216 N.J. at 63 (stating that “[a] criminal defense attorney must not be hindered by conflicts of interest that could compromise his or her duty to a client”); State v. Drisco, 355 N.J. Super. 283, 294-95 (App. Div. 2002) (holding that a defendant’s ineffectiveness allegation in a prior case did not create a disqualifying conflict for the same attorney in a later case). It is surely not the first time that a defendant has cast aspersions on or threatened his or her defense counsel. We condemn abusive or threatening conduct. Yet, the defense attorney is usually in the best position to determine whether a client is merely blowing off steam or poses a real threat that disables the attorney – from a sense of self preservation or extreme aversion for the client – from providing diligent and loyal representation. Here, defense counsel did not move to withdraw. He affirmatively stated he was ready to proceed. Defendant wanted to proceed as well. Defense counsel then presented a successful argument opposing an extended term.

Finally, we are wary of establishing a rule recognizing a conflict of interest whenever a defendant threatens, demeans, or insults his attorney. Such a rule would endow the defendant with the unilateral power to create a self -serving conflict that would compel the withdrawal of counsel and delay proceedings.

(Mike Frisch)