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Newark, N.J.-Public defenders who get into fights with their bosses aren’t necessarily compromising their clients’ interests, a New Jersey appellate court has ruled. The intermediate Appellate Division declined to remove from three homicide cases a defense lawyer who brought an unrelated whistleblower suit against the New Jersey Office of the Public Defender. The Mercer County Prosecutor’s Office had sought to bounce Gerald Boswell from the cases-two of which involve the death penalty-to excise any appealable issues before trial. The lawyer’s advocacy might be crippled if his managers, angered or cowed by the suit, were overly cautious or vindictive when responding to his requests for litigation resources, Assistant Prosecutor Kimberly Lacken argued. Judge Edith Payne found the state’s concerns “speculative and thus insufficient” because all but one of the managers named in the suit had left the office and the rest had no contact with Boswell. There was no evidence that the suit was interfering with the murder cases, Payne noted in State v. Davis, State v. Jones and State v. Gore, No. A-1288-03T5, decided on Jan 16. Only if the suit produced “an actual conflict” within the cases would the attorney be forced out. The appeal was closely watched for two reasons. First, if the decision had gone the other way, it might have allowed prosecutors to force defense lawyers off cases whenever they found a workplace spat in their opposing counsel’s background. Second, the issue spawned from an internal dispute that occupied the Office of the Public Defender’s Ocean County regional office in 2001 and 2002. The dispute ended after a secret examination by the defender’s office that enveloped 36 witnesses, including three judges. A jubilant attorney Boswell, a public defender pool attorney, was jubilant last week. He said the ruling potentially protects prosecutors as well, because it allows government lawyers who bring suits against their bosses to continue working. A ruling the other way could, in theory, have forced New Jersey lawyers of any stripe out of all litigation the moment they brought suits under the state Conscientious Employee Protection Act. Lacken will not appeal the decision, according to Casey DeBlasio, a spokeswoman for the Mercer County Prosecutor’s Office, who noted that the appeal sprang from a letter to three Mercer County judges from the Office of the Public Defender, telling them of Boswell’s suit, Boswell v. Office of the Public Defender, No. MER-L-1066-03.

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