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An attorney’s duty of loyalty continues after the client’s death, the New Jersey Supreme Court ruled Jan. 27, barring a law firm from representing someone accused of killing a former client. Though a defendant should be allowed the counsel of his or her own choosing, “that right must yield when an actual conflict is found,” Justice Jaynee LaVecchia wrote for a unanimous court in State in the Interest of S.G., A-107-01. In criminal matters, she continued, “special vigilance is required because an attorney’s divided loyalty can undermine a defendant’s Sixth Amendment right to effective assistance of counsel.” S.G., a juvenile, is charged with firing a weapon indiscriminately into a crowd on Aug. 1, 2001, after an argument. A bullet struck Theodore Hilton, who died several days later. S.G.’s family retained Saul Steinberg, a partner at Sufrin Zucker Steinberg & Wixted in Camden, N.J. It turned out that partner Dennis Wixted was Hilton’s lawyer of record on two drug charges, having represented him for about five years. Camden County Prosecutor Vincent Sarubbi moved to disqualify Steinberg, arguing there was clear conflict of interest that would hobble the prosecution. He said the office wanted to remove a likely avenue of appeal if S.G. were convicted. The trial court denied the motion, finding that since Hilton was dead, the firm no longer represented him, so there was no actual conflict. A divided Appellate Division panel affirmed the denial, the majority concluding that the circumstances presented only a potential conflict that was not sufficiently significant to outweigh S.G.’s right to counsel of his choice. In addition, there was no evidence that the Sufrin firm had obtained from Hilton any confidential information relevant to S.G. Judge Richard Newman dissented, saying that an inherent risk of conflict is presented when an attorney represents a defendant accused of committing a crime against another client, specifically when the attorney might be required to cross-examine the client/victim. Newman called the representation a “disservice to the administration of criminal justice.” The New Jersey Supreme Court granted leave to appeal the interlocutory decision and last week agreed with the dissent, saying that representation of a criminal client ends only with the client’s consent or the permission of the courts, LaVecchia said. “That one of them died does not negate the actual conflict that arose and persisted during the entire period of the actual representation of the interests of both men,” LaVecchia wrote. Even though Hilton is dead, he and his estate have interests that must be protected. When Steinberg entered an appearance on behalf of S.G., “[he] became the attorney of record for a person accused of a crime that constituted also a patently tortious act against Hilton,” wrote LaVecchia. Hilton’s estate’s desire to pursue a Survivor’s Act claim against S.G. is directly contrary to S.G.’s right to effective assistance of counsel. Complicating matters, the charges against Hilton were not dismissed until several weeks after his death. During that time, the firm represented Hilton and S.G. “Thus, this was not successive representation of clients with adverse interests where the possibility of breach of client confidences becomes a focus of the conflict analysis,” LaVecchia wrote. “Members of the Sufrin firm were serving simultaneously as counsel of record on behalf of the victim and on behalf of his alleged assailant within our court system for a period of weeks.” LaVecchia added, “The pointedly direct and adverse position inherent in defending Hilton’s accused killer is exactly the sort of conflict that the professional rules of conduct ought not and do not permit.” Neither was the conflict of interest waivable under RPC 1.7(a). “Even if Hilton’s consent, after death, somehow could be expressed effectively, S.G.’s waiver would not be dispositive,” she wrote. “Given the actual conflict that existed in this case and the obligation to ensure that defendant receives a fair trial, S.G.’s proffered consent is immaterial because an actual and direct conflict may not be waived in this setting.” Steinberg did not return a telephone call seeking comment.

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