Conflict Not Imputed

The New Jersey Appellate Court has held that a personal disqualifying conflict is not imputed to the rest of a prosecutor’s office

In this appeal we address whether an entire county prosecutor’s office must be recused from a criminal prosecution when the county prosecutor has a personal, disqualifying conflict. We hold that so long as the prosecutor has been completely screened from and has no oversight of the matter, the prosecutor’s office should not be disqualified. Accordingly, we affirm the trial court’s order denying defendant’s motion to disqualify the entire Monmouth County Prosecutor’s Office (MCPO) from continuing to prosecute defendant and multiple co-defendants in this criminal matter.

The case

In February 2020, an MCPO task force began investigating gang-related activities in Monmouth and other New Jersey counties. That task force was ledby an MCPO detective, included several other MCPO detectives, and coordinated some of its investigations with other law enforcement agencies.

Ultimately, the task force came to believe that various street gangs were coordinating an array of criminal activities into a “systematic criminal enterprise,” referred to as “Golden State.” The task force developed evidence that Golden State members acted in concert to distribute illegal drugs, use and transfer firearms, recruit and discipline members, and expand their criminal activities.

Beginning in October 2020, defendant Daishon I. Smith was charged with multiple criminal offenses, the majority of which were based on evidence developed by the task force. Initially, on October 4, 2020, defendant was charged with several drug-related offenses. Later that month, defendant and more than thirty co-defendants were charged with numerous first- and seconddegree offenses, including racketeering, drug offenses, and weapons offenses.

The conflict

For approximately seven months, from October 30, 2020, to May 21, 2021, defendant was represented by Raymond S. Santiago, who was then engaged in the private practice of law. During that time, Santiago represented defendant at a detention hearing and filed two applications related to defendant’s pretrial detention. Santiago also received initial discovery related to the charges filed against defendant in October 2020.

In May 2021, Santiago filed a motion to be relieved as defendant’s counsel. In support of that motion, Santiago certified that in late April 2021, he had some disagreements with defendant and defendant directed him to cease working on his case. Santiago also conferred with defendant’s family before filing his motion to be relieved as counsel. On May 21, 2021, the trial court granted Santiago’s motion to be relieved as defendant’s counsel. Since then, defendant has been represented by other counsel. His current counsel began to represent defendant on September 8, 2021.

Over a year later, on October 7, 2022, Santiago was sworn in as Acting Monmouth County Prosecutor.

Ethics rules

RPC 1.11 and RPC 1.9 clearly prohibit Santiago from having any involvement in the prosecution of defendant. RPC 1.10 addresses imputing conflicts among lawyers in a private law firm. It does not expressly address government lawyers, such as prosecutors. The question then becomes whether the imputation in RPC 1.10 should be applied to a prosecutor, and in particular to a county prosecutor who oversees the county prosecutor’s office.

No New Jersey case has expressly addressed whether the personal conflict of a county prosecutor should be imputed to the entire county prosecutor’s office. Existing New Jersey caselaw makes clear that requests for disqualification of an entire prosecutor’s office should be scrutinized and have rarely been granted.

The court surveyed other jurisdictions and rejected a per se rule

We believe that the majority rule is the better rule and is more consistent with New Jersey caselaw. The RPCs treat lawyers in private practice differently than lawyers in government service. See RPC 1.10; RPC 1.11; see also State v. Bell, 90 N.J. 163, 168 (1982). There are sound public policy reasons for that distinction. Moreover, our Supreme Court has reasoned that disqualifying an attorney or an office of attorneys based on a conflict “must have some reasonable basis” grounded in an actual conflict. Harvey, 176 N.J. at 529 (quoting In re Op. No. 653 of the Advisory Comm. on Pro. Ethics, 132 N.J. 124, 132 (1992)).

In that regard, in 2006, our Supreme Court decided that New Jersey would not consider the appearance of impropriety in determining whether a lawyer has a disqualifying conflict. See In re Sup. Ct. Advisory Comm. on Pro. Ethics Op. No. 697, 188 N.J. 549, 568 (2006). The Court explained that the concept of the appearance of impropriety should not be considered in determining whether a conflict of interest exists under RPC 1.9 as its use “injects an unneeded element of confusion.” Id. at 562 n.5.

We, therefore, adopt the majority rule and conclude automatic disqualification of the entire prosecutor’s office is not required. Instead, this rule requires disqualification of the entire prosecutor’s office only where the prosecutor was not effectively screened or has shared confidential information he or she learned while representing the defendant. In short, our analysis of the law on conflicts and our consideration of the policies embodied in the RPCs support a rule where individual, personal conflicts of county prosecutors are not imputed to the entire office.

(Mike Frisch)