SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-3215-98T5
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
GREGORY S. BRUNO,
Defendant-Respondent.
________________________________________________________
Argued May 25, 1999 - Decided June 29, 1999
Before Judges Muir, Jr., Keefe, and Eichen.
On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County.
Peter E. Warshaw, Jr., Assistant Prosecutor,
argued the cause for appellant (John Kaye,
Monmouth County Prosecutor, attorney; Mary R.
Juliano, Assistant Prosecutor, of counsel and
on the brief).
Edward C. Bertucio, Jr., argued the cause for
respondent (Giordano, Halleran & Ciesla,
attorneys; Norman M. Hobbie, of counsel; Mr.
Bertucio, on the brief).
The opinion of the court was delivered by
KEEFE, J.A.D.
This appeal stems from the State's motion to disqualify the
firm of Giordano, Halleran & Ciesla (the firm) from representing
the defendant, Gregory Bruno, in the underlying criminal matter
on the ground that the firm had also represented the lead
detective in the criminal investigation, Ronald D. Ohnmacht, in a
prior civil rights complaint and a workers' compensation matter.
The State argued that the firm continued to represent Ohnmacht
after the final judgment in the workers' compensation matter and
as such, the representation of defendant constituted a conflict
of interest and an appearance of impropriety. Following oral
argument, Judge Kennedy denied the State's motion for
disqualification. We granted the State's motion for leave to
file an interlocutory appeal. The State now raises the following
issues for review:
I. THE FIRM SHOULD BE DISQUALIFIED BECAUSE
IT ACCEPTED DEFENDANT BRUNO'S CASE IN
VIOLATION OF RPC 1.7 (a)
II. THE FIRM SHOULD BE DISQUALIFIED BECAUSE
REPRESENTATION OF BRUNO CREATES AN APPEARANCE
OF IMPROPRIETY
For the reasons stated herein, we affirm the judgment denying
disqualification of the firm.
The relevant facts are essentially undisputed. In 1992,
Ohnmacht first retained the firm to defend him in a civil rights
complaint in federal district court. Ohnmacht was sued in that
matter individually as well as in his official capacity as a
detective with the Middletown Township Police Department. The
plaintiff in the action alleged that Ohnmacht committed several
Sixth Amendment violations during interviews the detective
conducted of him in July 1989.
The firm assigned two attorneys, Michele A. Querques and Guy
P. Ryan, to handle Ohnmacht's defense although Norman Hobbie, a
partner in the firm, was attorney of record. According to
Querques, she and Ryan, who is no longer with the firm, handled
the "actual defense" of Ohnmacht and Hobbie did not participate
in the "day-to-day defense." After a brief discovery period, the
firm filed a motion resulting in the dismissal of the action in
1993. Both Querques and Ryan certified that they obtained no
attorney-client confidences during that representation that are
usable or relevant to defendant Bruno's case. The State does not
contend otherwise.
In 1996, Ohnmacht suffered a work-related injury. He
contacted Hobbie, who referred the matter to M. Scott Tashjy, an
attorney in the firm who handles workers' compensation cases.
Tashjy is the only attorney who handled Ohnmacht's claim.
The workers' compensation claim settled on June 24, 1997.
Two days later, Tashjy sent Ohnmacht the following letter:
It was a pleasure meeting with you
recently with regard to resolution of your
Workers' Compensation claim. I would like to
take this opportunity to thank you for
expressing confidence in our firm, and it was
a pleasure for me to handle your claim. As
we discussed during our last meeting, you
have two years from the date you receive your
last disability benefit to reopen your case
for an increase in permanent disability or to
request additional medical treatment. Please
keep this in mind. I would ask that, once
you get your final permanent disability
payment, you mark your calendar for 18 months
in advance (as a precaution), to ensure that
the two-year period does not pass unnoticed.
As always, I will be available for any
questions you might have with regard to your
case or any legal issues that confront you in
the future. I wish you the best.
Thank you for your attention.
On September 29, 1997, Tashjy sent Ohnmacht another letter
enclosing three blank applications for Review of Modification of
Formal Award. Tashjy requested Ohnmacht to "sign where indicated
and return same to me . . . ." Ohnmacht did not respond.
On October 13, 1997, Tashjy sent Ohnmacht the following
letter:
Please be advised that we have filed a
Reopener Claim Petition with regard to your
Workers' Compensation claim. Please contact
my office and advise me specifically the
complaints you have with regard to your leg
and your neck. As you will recall, when we
originally settled this matter, we reserved
the right to reopen this claim, but we must
indicate to the Court how your injuries have
"worsened" since the date of the last Order
in this matter. Thus, your input is
essential. Please contact me at your
convenience so we may discuss these issues.
Thank you for your attention.
Tashjy certified in connection with the State's
disqualification motion that the first sentence of the letter
contains a typographical error in that it should have read
"Please be advised that we have not filed a Reopener Claim
Petition with regard to your Workers' Compensation claim." At
argument before the trial court the State acknowledged the error,
stating that it had "absolutely no basis to dispute that."
Tashjy's certification makes sense in view of the fact that
Ohnmacht did not return the signed forms necessary to institute
such proceedings. Ohnmacht also failed to respond to this third
letter.
On January 6, 1998, Tashjy sent Ohnmacht a fourth letter,
stating:
Please contact my office to schedule an
appointment which would be convenient for
yourself regarding the reopening of your
Workers' Compensation claim. If it is not
convenient for you to meet at my office,
please be advised that I would be happy to
meet you at headquarters. I look forward to
speaking with you soon.
Thank you for your attention.
Ohnmacht did not respond to this letter. A similar letter
followed on January 26, 1998, which reads:
Please contact me at your earliest
possible convenience so that we may schedule
a mutually agreed upon date and time for an
appointment so that we may discuss reopening
your claim. In the alternative, please
advise me as to your availability at
Headquarters, and I will be happy to meet you
there.
Ohnmacht neither responded to these letters nor met with Tashjy
to discuss the workers' compensation matter until after defendant
retained the firm on February 4, 1998.
The facts leading up to the firm's retainer by defendant are
as follows. On January 18, 1998, the body of Robert James
Gelhaus, Jr., was discovered in a taxicab. Ohnmacht,
notwithstanding his longstanding friendship with defendant's
family, was designated by the Middletown Township Police
Department to serve as lead detective in the homicide
investigation. According to Ohnmacht, he has conducted
approximately twenty witness interviews as well as an interview
of the defendant. He "anticipate[s]" that his interview of the
defendant will be subject to a Miranda hearing. Additionally, he
served as the affiant for several search warrants.
According to the firm, however, Ohnmacht simply took or
witnessed statements of mostly collateral witnesses, and there
was always a second officer with him. The firm also asserts that
Ohnmacht witnessed "an exculpatory statement by [defendant], the
admission of which the defense does not intend to challenge."
The State does not contest these assertions.
On February 1, 1998, defendant was charged with the murder
of Gelhaus, as well as felony murder, armed robbery, and
possession of a weapon for an unlawful purpose. The complaint
was signed by a detective other than Ohnmacht. On February 4,
1998, defendant retained the firm. The attorneys specifically
assigned to defendant's case are Norman Hobbie and Edward
Bertucio, Jr.
When Ohnmacht learned that defendant had retained the firm,
he contacted Tashjy on February 13, 1998, to communicate his
objection to the firm's representation of defendant.See footnote 1 Tashjy
informed Ohnmacht that the firm was going to represent defendant
notwithstanding his objection. Tashjy took the position that the
firm had ended its representation of Ohnmacht with the settlement
of the compensation matter on or about June 24, 1997. Ohnmacht
informed Tashjy that he wanted the firm to continue representing
him. He claimed in his certification that he believed up until
that time that the firm would represent him in the reopening of
his compensation claim. Ohnmacht has since retained another
attorney to represent him in the reopener claim.
Ohnmacht subsequently communicated his objection to the
Monmouth County Prosecutor's Office. Thereafter, a Monmouth
County Assistant Prosecutor advised the firm that Ohnmacht
"unequivocally objects" to its representation of defendant and
requested that the firm advise as to its position regarding a
conflict of interest or an appearance of impropriety. The firm
responded that it had fully discussed the matter with defendant
and his parents, all of whom instructed the firm to remain as
counsel.
The State then filed a motion to disqualify the firm. The
trial court denied the State's motion, finding as follows:
From my reading of the various
certifications, neither the civil rights
action or the workers' compensation case
would have required the detective to reveal
confidential information. As stated in the
certifications of counsel, both
representations appear to have been proforma
in nature.
My review of the exhaustive
certification gives rise to my conclusion
that no member of the Giordano firm would now
possess confidential information in reference
to the detective that would serve to benefit
defense counsel during cross-examination of
that detective in the Bruno case if the State
elected to call him to testify.
. . . .
I find that there is no substantial
relation between the prior representations of
Detective Ohnmacht and the current
representations of Gregory Bruno. . . .
I'm essentially finding based upon my
review of the file that the Giordano firm's
representation of Detective Ohnmacht
terminated on or shortly after June 24, 1997
coincidentally with the settlement of the
workers' compensation claim.
The good practice letters cited by the
State and sent by the Giordano firm to
Detective Ohnmacht . . . do not change my
opinion.
None of those letters received a
response from Detective Ohnmacht. These
letters essentially outline the conditions
should Ohnmacht seek to reopen his workers'
compensation case. There was no response to
Giordano that Ohnmacht sought to reopen his
compensation case. And I, therefore, find
that the compensation case was not an open
matter at the time the Giordano firm was
retained by the Bruno family.
Again, although that might change the
criteria, any reliance on NeedhamSee footnote 2 is not
appropriate. The Needham case involved an
attorney that had previously represented the
State's key witness, Officer Warner. There
is no indication here that Ohnmacht will be
the State's (key witness).
. . . .
Also, a distinguishing factor which I've
previously cited is the intensity of the
attorney/client relationship in Needham.
Needham outlined a fact pattern much
different than this. The attorney in the
Needham case represented the key witness of
the State in another criminal matter where
the key witness was, in fact, accused of a
crime.
It is much more likely there that the
law firm obtained critical confidential
information which would adversely affect the
police officer's subsequent testimony in the
criminal case. As previously stated, that's
not so here.
The State argues that the trial court erred in
characterizing Ohnmacht as a former client and in thereby
applying RPC 1.9 instead of RPC 1.7. The State maintains that
the undisputed facts reveal that Ohnmacht was a current client at
the time the firm agreed to represent the defendant. The firm,
on the other hand, disagrees with the State's contention that the
relationship between Ohnmacht and the firm is undisputed. It
contends that the facts were "sharply contested" at the trial
court as to whether Ohnmacht was a present or former client of
the firm on February 4, 1998, whether he is a "key witness" in
the criminal matter, and whether any facts exist to create a
conflict of interest or an appearance of impropriety. The firm
argues that Judge Kennedy's legal conclusions flowed from his
resolution of the facts in its favor. As such, the firm
maintains that this court must substantially defer to the trial
court's findings of facts.
The two Rules of Professional ConductSee footnote 3 most relevant to this
appeal are RPC 1.7, addressing the simultaneous representation of
multiple clients, and RPC 1.9, addressing problems stemming from
the representation of a former client in the course of
representing a current client. The former rule provides in
relevant part:
RPC 1.7 Conflict of Interest: General Rule
(a) A lawyer shall not represent a
client if the representation of that client
will be directly adverse to another client
unless:
(1) the lawyer reasonably believes that
representation will not adversely affect the
relationship with the other client; and
(2) each client consents after a full
disclosure of the circumstances and
consultation with the client, except that a
public entity cannot consent to any such
representation.
(b) A lawyer shall not represent a
client if the representation of that client
may be materially limited by the lawyers's
responsibilities to another client or to a
third person, or by the lawyer's own
interests, unless:
(1) the lawyer reasonably believes the
representation will not be adversely
affected; and
(2) the client consents after a full
disclosure of the circumstances and
consultation with the client . . . .
(c) This rule shall not alter the effect
of case law or ethics opinions to the effect
that:
(1) in certain cases or categories of
cases involving conflicts or apparent
conflicts, consent to continued
representation is immaterial, and
(2) in certain cases or situations
creating an appearance of impropriety rather
than an actual conflict, multiple
representation is not permissible, that is,
in those situations in which an ordinary
knowledgeable citizen acquainted with the
facts would conclude that the multiple
representation poses substantial risk of
disservice to either the public interest or
the interest of one of the clients.
RPC 1.9 provides:
RPC 1.9 Conflict of Interest: Former Client
(a) A lawyer who has represented a
client in a matter shall not thereafter:
(1) represent another client in the same
or a substantially related matter in which
that client's interests are materially
adverse to the interests of the former client
unless the former client consents after a
full disclosure of the circumstances and
consultation with the former client; or
(2) use information relating to the
representation to the disadvantage of the
former client except as RPC 1.6 would permit
with respect to a client or when the
information has become generally known.
(b) The provisions of RPC 1.7(c) are
applicable as well to situations covered by
this rule.
Determining which rule applies depends on whether Ohnmacht
was a present or former client at the time the firm agreed to
represent defendant. The trial court found that the firm's
representation of Ohnmacht terminated on June 24, 1997, with the
settlement of his compensation claim. Judge Kennedy
characterized the letters the firm sent Ohnmacht as "good
practice letters" that did not alter his opinion that the
compensation case "was not an open matter at the time the
Giordano firm was retained by the Bruno family." As such, the
court applied RPC 1.9 and essentially held that the firm did not
obtain information in connection with its former representation
of Ohnmacht that it could use to the disadvantage of Ohnmacht in
its current representation of the defendant. See RPC 1.9(a)(2).See footnote 4
Our standard of review in this case is plenary. Where as
here the trial judge had no factual disputes to resolve on
credibility grounds and only legal conclusions to draw, we are
not required to defer to the trial judge's findings. See
Manalapan Realty v. Township Comm.,
140 N.J. 366, 378 (1995)
(stating that "[a] trial court's interpretation of the law and
the legal consequences that flow from established facts are not
entitled to any special deference"). Nonetheless, we agree with
Judge Kennedy's conclusion that Ohnmacht was not a client of the
firm at the time the firm undertook the representation of
defendant.
Unquestionably, when the final judgment was entered in
Ohnmacht's compensation matter to his satisfaction, the firm was
not bound to represent Ohnmacht in any future reopener proceeding
and Ohnmacht was not bound to engage the firm. The firm's duty,
at best, was to inform Ohnmacht of his right to reopen the case
in the future and the prerequisites for doing so. Cf. Procanik
v. Cillo,
206 N.J. Super. 270, 291 (Law Div. 1985) (holding that
a jury might find that the defendant attorneys in a legal
malpractice action breached the post-termination duty to advise
clients of a favorable subsequent decision that would have
prevented their medical malpractice action from being time
barred), rev'd in part on other grounds,
226 N.J. Super. 132
(App. Div.), certif. denied,
113 N.J. 357 (1988); State v.
Bowens,
101 N.J. Super. 193, 202 (Law Div. 1968) (finding, in
criminal context, that "the duty of a lawyer, whether retained or
appointed, to a defendant client who has been convicted does not
end until he has discussed the availability and the advisability
of an appeal with him . . . ."); see also American Bar
Association, Annotated Model Rules of Professional Conduct,
comment on Rule 1.3 (1996) (stating that "if a lawyer has handled
a judicial or administrative proceeding that produced a result
adverse to the client but has not been specifically instructed
concerning pursuit of an appeal, the lawyer should advise the
client of the possibility of appeal before relinquishing
responsibility for the matter"). The firm's letter to Ohnmacht
of June 26, 1997, was the fulfillment of that duty.
Clearly, the letters that followed the June 26 letter can
best be described as "marketing letters," that is, an effort by
the firm to maintain Ohnmacht's interest in re-engaging the firm
should he decide to pursue a reopener. While the conduct of an
attorney may create a reasonable belief on the part of the client
that the attorney has undertaken representation, the
reasonableness of such a belief must be "based on the conduct of
both parties, and a bright-line test is not available."
Annotated Model Rules of Professional Conduct, supra, comment on
Rule 1.9. The general rule is that an attorney/client
relationship is not established unless "a person manifests to a
lawyer the person's intent that the lawyer provide legal services
for the person." Restatement of the Law Governing Lawyers, § 26
(Proposed Final Draft No. 1 1996). Our Supreme Court has
acknowledged that "`representation is inherently an aware,
consensual relationship,' one which is founded upon the lawyer
affirmatively accepting a professional responsibility. . . .
[S]uch acceptance need not necessarily be articulated, in writing
or speech but may, under certain circumstances, be inferred from
the conduct of the parties." In re Palmieri,
76 N.J. 51, 58-59
(1978). Thus, contrary to the State's argument, the issue cannot
be decided solely by considering the firm's conduct. Ohnmacht's
conduct is equally important.
The firm's letters to Ohnmacht after obtaining the final
award in the compensation matter were aimed at obtaining his
signed authorization to proceed, as well as the necessary
information to do so. There was no indication by the firm that
it would take affirmative action on Ohnmacht's behalf without the
authorization and information it requested. It is uncontroverted
that Ohnmacht did not respond directly to any of the firm's
requests. He did not sign the necessary authorizations, nor did
he give the firm updated medical information. He did not even
make a courtesy telephone call to Tashjy to explain his silence.
Indeed, he did not contact Tashjy until after he learned that the
firm had been engaged to represent defendant and, even then, he
contacted Tashjy solely to register his objection to the firm's
representation of Bruno.
Whether an attorney/client relationship has been established
is sometimes a close question. In such cases, the issue has
often turned on whether the attorney is in possession of
confidential information gleaned from the prior representation of
the client that can be used in the current representation to the
former client's disadvantage. Annotated Model Rules of
Professional Conduct, supra, comment on Rule 1.9. That is not
the case here, and the State does not contend otherwise.
Accordingly, we conclude that on February 4, 1998, when the
firm was contacted by defendant's father to represent defendant
in the criminal matter, the firm could have reasonably concluded
that it had not re-established its relationship with Ohnmacht and
that it could undertake defendant's representation without
violating the provisions of RPC 1.7. That is so, because the
conduct of the firm and Ohnmacht considered as a whole did not
evidence the aware consensual undertaking required to form an
attorney/client relationship.
The State argues in the alternative that the appearance of impropriety mandates the firm's disqualification. Our Supreme Court added this concept to the ABA Model Rules when our Rules of Professional Conduct were adopted. See RPC 1.7(c) and RPC 1.9(b). Thus, the appearance of impropriety must be addressed even in the absence of an actual conflict under either RPC 1.7 or RPC 1.9. Dewey v. R.J. Reynolds Tobacco Co., 109 N.J 201, 214 (1988); McCarthy v. John T. Henderson, Inc., 246 N.J. Super. 225, 232 (App. Div. 1991). "The `appearance' doctrine is intended not to prevent any actual conflicts of interest but to bolster the public's confidence in the integrity of the legal profession." In re Petition for Review of Opinion No. 569, 103 N.J. 325, 330 (1986). The Court has generally held that the appearance of impropriety "must be something more than a fanciful possibility. It must have some reasonable basis." Higgins v. Advisory Comm. on Prof'l Ethics, 73 N.J. 123, 129 (1977). Without such an analysis, the appearance of impropriety standard, as one court put it,
serve[s] as a substitute for analysis rather than as a guide to it. It is easier to find a "doubt" than to resolve difficult questions of law and ethics. The disruption and prejudice that befall a client whose counsel is disqualified are reasons to avoid a hasty conclusion in favor of disqualification, based merely on a "doubt" about the propriety of the representation.
[Realco Servs., Inc. v. Holt,
479 F. Supp. 867, 872 n.4 (E.D. Pa. 1979).]
In determining whether a particular case creates an
appearance of impropriety, courts judge the situation from the
viewpoint of the public. In re Petition for Review of Opinion
No. 569, supra, 103 N.J. at 331. In other words, courts "view
the conduct as an informed and concerned private citizen and
judge whether the reputation of the Bar would be lowered if the
conduct were permitted." In re Opinion No. 415,
81 N.J. 318, 325
(1979); see also RPC 1.7(c)(2) (providing that multiple
representation is prohibited "in those situations in which an
ordinary knowledgeable citizen acquainted with the facts would
conclude that the multiple representation poses substantial risk
of disservice to either the public interest or the interest of
one of the clients"). This inquiry is highly fact-sensitive and
does not take place "in a vacuum." In re Opinion No. 653,
132 N.J. 124, 132 (1993) (quoting In re Opinion No. 415, supra, 81
N.J. at 325).
The State primarily relies on State v. Needham,
298 N.J.
Super. 100 (Law Div. 1996), as binding authority in the present
matter.See footnote 5 In Needham, the trial court disqualified a defense
attorney on the basis of an appearance of impropriety where the
attorney also represented a police officer who was one of the key
prosecution witnesses in the defendant's trial. Id. at 102. The
officer was one of several officers who had responded to the
scene of the crime and had been threatened by the defendant.
Ibid. Defendant's attorney had previously represented the
officer in an indictable criminal matter in which the officer had
been acquitted after a jury trial, as well as in a more recent
internal affairs investigation that was resolved before
culminating in a formal charge. Id. at 102-03. The attorney's
representation of the officer in the internal affairs
investigation occurred during the same time period that
defendant's charges arose. Id. at 103.
The Needham court found that the prior representation of the
officer created an appearance of impropriety because "the public
could conclude that [the] officer [ ] may have unfairly aided
defendant, that [the attorney] is not cross-examining [the]
officer [ ] as vigorously as he would if there were no
relationship between them, or that [the attorney] is using
confidential information during his cross-examination of [the]
officer [ ]." Id. at 104. More specifically, the court found
that the officer may not testify as vigorously as he otherwise
would if not for the former attorney-client relationship with
defense counsel. Ibid. One reason for this is that the officer
may seek to ingratiate himself with the attorney should he again
need his services. Ibid. Of similar concern was the possibility
that, at the expense of the defendant, the attorney would not
cross-examine the officer with as much intensity or vigor as he
otherwise would in order to preserve their relationship and
continue receiving his business. Id. at 105-06. Finally, the
court expressed concern that the attorney may use information
from the prior representation of the officer to aid the defendant
or, even if such information could not be used, the attorney may
know other information that gives him influence over the officer
or can be used in a subtle manner during cross-examination.
Ibid. The court recognized that there are an "infinite number of
confidences" that the attorney could have learned while defending
the officer in an internal affairs investigation and a criminal
action that could be exploited when the officer testifies for the
State. Ibid.
Needham is factually distinguishable from the present matter
and therefore inapplicable. The Needham court premised its
holding primarily on the attorney's prior representation of the
officer in a criminal matter that ended in an acquittal after a
jury trial and in an internal affairs investigation. Based on
that, the court found that strong possibilities of improprieties
existed because of the extent of the former relationship between
the officer and attorney and their possible attempts throughout
trial, however subtle, to maintain that relationship intact for
future dealings. Of critical concern was also the possibility
that the attorney gained confidential information during his
representation of the officer that could somehow be used during
the cross-examination of the officer or in the attorney's trial
strategy.
In contrast, the representation of Ohnmacht by the firm was
limited in scope and therefore not subject to the same risks as
in Needham. As stated earlier in this opinion, the State does not
contend that the firm gained confidential information during the
prior representation that could somehow be used to Ohnmacht's
detriment during his cross-examination.
Moreover, because the inquiry is highly fact-sensitive, the
informed citizen with full knowledge of the facts would conclude
that there is no "high risk" of impropriety here as in Needham.
For example, because the relationship between Ohnmacht and the
firm ultimately terminated on a sour note, there is no concern
that Ohnmacht will try to aid the defendant at trial or provide
the firm with information about the State's trial strategy in
order to ingratiate himself with the firm.See footnote 6 For that very reason
there is no concern that the firm will not vigorously cross
examine Ohnmacht.See footnote 7 The firm, who without hesitation informed
Ohnmacht that it did not consider him a client and that it
intended to represent the defendant despite his protestations,
certainly has exhibited no intention to preserve any relationship
with Ohnmacht. There is therefore nothing to prevent Ohnmacht
from professionally discharging his duties as lead detective and
as a prosecution witness or the firm from zealously representing
the defendant. As such, there is no "reasonable basis" for the
conclusion that these facts create an appearance of impropriety.
See Higgins, supra, 73 N.J. at 129.
Affirmed.
Footnote: 1Ohnmacht initially certified that this conversation occurred on July 14, 1998. He later agreed that Tashjy's recollection of the date as being February 13, 1998, is correct. Footnote: 2State v. Needham, 298 N.J. Super. 100 (Law Div. 1996). Footnote: 3The New Jersey Supreme Court has essentially adopted the ABA Model Rules of Professional Conduct, pursuant to both a recommendation by the Supreme Court Committee on the Model Rules of Professional Conduct and a revision by the Court. Pressler, Rules Governing the Courts, Introduction to Rules of Professional Conduct (1998). Footnote: 4 The provisions of RPC 1.9(a)(1) are clearly inapplicable. The firm is not representing Bruno in "the same or a substantially related matter." Footnote: 5The other cases upon which the State relies are factually distinguishable. See, e.g., State v. Galati, 64 N.J. 572 (1974) (where the Court prohibited all future representations by PBA attorneys in matters where an officer from the same PBA chapter will be called to testify); State v. Catanoso, 222 N.J. Super. 641 (Law Div. 1987) (where the court disqualified a defense attorney who had previously represented, in substantially related matters, a business of which the State's primary witness had been president); Advisory Opinion 404, 102 N.J.L.J. 205 (1978) (where the Ethics Committee found that an attorney could not represent a defendant where the complaining witness was a police officer whom the attorney previously represented on unrelated matters). Footnote: 6Indeed, Ohnmacht has sought other counsel to file his reopener claim. Footnote: 7In any event, the firm informed us at oral argument that discovery in the underlying matter to date indicates that it is highly unlikely that Ohnmacht will have to be cross-examined in a way that either his credibility or his investigative techniques will be called into question.