State v. Kearney, 479 N.J. Super. 539 (App. Div. 2024). This appeal was from the denial of post-conviction relief. Defendant had been convicted of murder and other offenses. He raised two claims of ineffective assistance by his trial counsel. Writing for the panel, Judge Sabatino found no merit in either contention, affirming the ruling of the Law Division.

One of those arguments– “whether defendant’s representation was compromised because his co-parent 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,” which defendant contended created a conflict of interest– called for “substantial discussion.” Defendant’s other claim– “that he was allegedly deprived of adequate advice about his right to testify at trial”– was “utterly without merit,” as the record (including defendant’s own testimony that he knew he had the right to testify but waived that right– showed that defendant knew full well about his right to testify. The panel’s opinion took barely more than one page to rebuff that contention.

Judge Sabatino’s opinion noted that the legal analysis of the more significant issue was a layered one. He first outlined the two-pronged test for ineffective assistance of counsel stated in Strickland v. Washington, 466 U.S. 668 (1984), and State v. Fritz, 105 N.J. 42 (1987), which adopted Strickland in New Jersey. A defendant claiming ineffective assistance must show that “(1) counsel’s performance was deficient, and (2) the deficient performance actually prejudiced the accused’s defense.” The first prong examines “whether counsel’s conduct fell below an objective standard of reasonableness,” and there is a “strong presumption” that counsel exercised “reasonable professional judgment.” The second prong calls for proof of a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Judge Sabatino then explained that New Jersey has a “two-tiered” structure relating to ineffective assistance. The first tier is whether there is a “per se conflict.” If so, “prejudice is presumed in the absence of a valid waiver, and the reversal of a conviction is mandated. In addition to that presumption, there is also a strong presumption against waiver of a defendant’s constitutional right to independent counsel.” The question whether payment of defendant’s legal fees by a person who is also a witness for the prosecution then led to the next layer: “principles of legal ethics that address the payment of a client’s legal fees by a third party.”

Rule of Professional Conduct (“RPC”) 1.8(f), Judge Sabatino observed, directly addresses the issue. That Rule states that “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.” But the next layer then presented itself, as the Supreme Court had previously said that “two other RPCs directly touch on the question presented.”

“RPC 1.7(a) … recognizes [a] concurrent conflict of interest . . . if: . . . there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to . . . a third person or by a personal interest of the lawyer [and] RPC 5.4(c) provides that [a] lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services” (citations and internal quotation marks omitted). In re State Grand Jury Investigation, 200 N.J. 481, 494 (2009).

In that case, the Court synthesized the various RPCs and formulated a “salutary, yet practical principle: a lawyer may represent a client but accept payment, directly or indirectly, from a third party provided each of … six conditions is satisfied.” Those six conditions were:

“1) The informed consent of the client is secured. In this regard, ‘[i]nformed consent’ is defined as the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.’ (2) The third-party payer is prohibited from, in any way, directing, regulating or interfering with the lawyer’s professional judgment in representing his client. . . . (3) There cannot be any current attorney-client relationship between the lawyer and the third-party payer. (4) The lawyer is prohibited from communicating with the third-party payer concerning the substance of the representation of his client. . . . (5) The third-party payer shall process and pay all such invoices within the regular course of its business, consistent with manner, speed and frequency it pays its own counsel. (6) Once a third-party payer commits to pay for the representation of another, the third-party payer shall not be relieved of its continuing obligations to pay without leave of court brought on prior written notice to the lawyer and the client. . . .”

Here, Judge Sabatino found that the final five conditions were satisfied. But there was no documentation of express consent by defendant. Despite that, the panel found no per se conflict, for multiple reasons. “First and foremost, the non-compliance with an ethics requirement, while relevant, does not automatically trigger per se civil or criminal consequences. Baxt v. Lilola, 155 N.J. 190, 197-98 (1998). Second, it is readily inferable from the record that defendant must have been fully aware that his co-parent … had paid his legal fees, as was adduced in open court by [her] trial testimony.” Indeed, “defendant [did] not claim he was unaware that [she] was paying
his defense counsel’s fees.” Most importantly, as Judge Sabatino went on to discuss in detail, defense counsel had been “a zealous advocate of defendant’s interests and exhibited loyalty to his client.”

The panel took “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 was so here. The panel recommended, however, that gong forward, “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).”

Finally, Judge Sabatino reached the final layer, the second tier conflict analysis. In that non- per se context, there must be a showing of “a great likelihood of prejudice” to the defendant, and “prejudice is not presumed.” Based on defense counsel’s conduct at trial, where he “forcefully” advocated for defendant, there was no conflict and “certainly no great likelihood of prejudice.” The panel thus affirmed the denial of post-conviction relief.