No Conflict Where Adverse Witness Paid Defendant's Legal Fees

The New Jersey Appellate Division affirmed the denial of post-conviction relief to a defendant convicted of murder who claimed a conflict of interest

In this opinion we afford substantial discussion as to one of those claims: whether defendant's representation was compromised because his coparent and girlfriend, who was called at trial as a fact witness for the State, paid for the legal fees of his private criminal defense attorney. Defendant alleges the fee arrangement created an untenable conflict of interest.

For the reasons that follow, we affirm the PCR court's determination that defendant was not deprived of effective representation of his counsel, who represented him zealously at trial. In particular, defense counsel vigorously cross examined the witness, who had paid his fees, about certain incriminating statements she made regarding defendant to police detectives.

The crime

Briefly stated, the indictment stemmed from the fatal stabbing of the victim, Christopher Sharp, on August 18, 2013, at a house in Perth Amboy where defendant's girlfriend and co-parent, Alicia Boone, resided with defendant and her three children. Sharp was Boone's cousin. A party took place at the house that night, at which defendant was present. An argument between defendant and Sharp ensued. According to the State's proofs, defendant stabbed Sharp three times sometime in the early morning.

Fee payer ethics issue

Under New Jersey's Rules of Professional Conduct (the "RPCs"), "lawyer[s] 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." RPC 1.8(f).

Here

As the PCR court found, Boone did not direct or interfere with defendant's counsel's representation of his client. Nor is there evidence she communicated with his counsel concerning the substance of the case. As described by Boone in her testimony, she had three meetings with counsel at the outset of his work to discuss and arrange payment, and that was essentially the end of their contact. No billing disputes or payment problems were identified. And defendant's counsel had no attorney-client relationship with Boone. To the contrary, as the PCR court found, defendant's counsel recommended Boone secure her own attorney to represent her interests—which she did.

Consent

As to the first condition concerning defendant's informed consent, we acknowledge the record contains no documentation of such express consent. Defendant alleges in his petition that counsel "never advised him or sought a  waiver" of a potential conflict.

Because defendant's counsel is now deceased, the veracity of that claim cannot realistically be disproved. But we decline to hinge a finding of a per se conflict and constitutional violation upon such a "bald assertion."

Zeal

Counsel advocated fiercely to negate Boone's second and third police statements about defendant "poking" the victim. He elicited extremely favorable testimony from her attesting that she did not believe defendant killed Sharp. Any conceivable division of counsel's loyalties that could be the subject of a waiver was, in retrospect, purely hypothetical.

Advice for future situations

We take judicial notice it is not unusual that a defendant's family and friends will pay a private defense lawyer's fees to represent a loved one or close acquaintance who is accused of a crime. Such private defense counsel perform a vital institutional role in supplementing the services provided by the Office of the Public Defender to clients who personally cannot afford counsel. In a few instances, as here, that payer may also be a potential fact witness for the State at the ensuing criminal trial. We discern no per se constitutional prohibition on such fee arrangements if they are disclosed and with the assent of the defendant and where the counsel's vigorous representation of the client is not being materially limited by the payer.

That said, going forward, we recommend that private criminal defense counsel document the client's informed consent with a written acknowledgment or some other recorded means at the time the fee arrangement is made. See RPC 1.8(f (1). There may, of course, be instances in which the payer's testimony for the State is anticipated to be so hostile to a defendant's interests that the lawyer is, in fact, materially limited. This is not one of them.

We also reject any notion that defendant's counsel here was materially limited by the fact that Boone paid his legal fees.

Conclusion

we affirm the PCR court's sound rejection of defendant's conflict of interest argument. No evidentiary hearing on the issue was required in these circumstances.

(Mike Frisch)