(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Stein, J., writing for a majority of the Court.

    This appeal requires the Court to consider whether the trial court was justified in declaring a mistrial over the objections of the prosecutor and defense counsel, based on defense counsel's prior representation of a significant and recanting State witness. It also requires the Court to determine whether defendant's retrial is permissible under the federal and State constitutions' prohibitions against double jeopardy.

    On February 7, 1996, Carl Watson, Wanda Colon and Amedeo Delacruz were looking to purchase heroin in a Newark neighborhood. Colon purchased a bag of heroin from Rahnzzan Johnson, who was accompanied by Sharonda Posey and John Loyal. When she returned to the car, Watson discovered the bag was empty. Colon and Watson returned to the apartment building where Colon made the purchase. After some arguments, Loyal gave Watson another bag of heroin. Upon exiting the building, Loyal pulled a gun and shot Watson several times, causing his death.

    Colon identified Loyal as the shooter from an array of photographs at police headquarters. Both Johnson and Posey also identified Loyal as the shooter. Loyal's trial for the murder of Watson commenced on April 16, 1997. At the trial, Posey recanted her earlier statement identifying Loyal as the shooter. After conducting a Gross hearing, the trial court determined that Posey's earlier statement was admissible at trial.

    Subsequent to the Gross hearing, the court inquired as to the representation of Posey by defense counsel, William Cucco. Neither Posey nor Cucco recalled such representation. In fact, Cucco had represented Posey on drug charges two years earlier. Both Loyal and Posey waived any potential conflict of interest. After initially requesting a mistrial, the prosecutor withdrew that request. The trial court, however, declared a mistrial sua sponte , primarily relying on RPC 1.7 and the prohibition against any appearance of impropriety. Loyal moved for dismissal of the charges based on his Fifth Amendment right against double jeopardy. The trial court denied the motion.

    Loyal was retried in 1997. He was found guilty of murder, aggravated assault, and related weapons charges. Loyal renewed his motion for dismissal on double jeopardy grounds. The motion was denied and Loyal was sentenced to a thirty-year parole ineligibility period on the murder charge and concurrent sentences on the remaining charges.

    The Appellate Division affirmed in an unreported opinion. The Supreme Court granted Loyal's petition for certification.

HELD: Defense counsel's prior representation of a material, recanting State's witness on drug charges constituted an appearance of impropriety and the ends of public justice necessitated a mistrial. In the absence of prejudice to the defendant, or bad faith or inexcusable neglect by the prosecutor, defendant's retrial did not violate the federal or State constitution's prohibition against double jeopardy.

1. Even if there is no actual conflict, RPC 1.7 precludes an attorney from representing a client where such representation creates an appearance of impropriety. Once an appearance of impropriety is discovered, that representation generally must cease. In criminal matters, disqualification is routinely required and in situations involving a recanting witness, the ethical dilemma is compounded. Depending on the “egregious” nature of the conflict, waiver may be ineffective. In determining the existence of an appearance of impropriety, the court must view the conduct as would an “ordinary, knowledgeable citizen acquainted with the facts.” (Pp. 14-24)

2. Individuals are constitutionally protected against being tried twice for the same offense. Termination of a trial after jeopardy attaches, however, does not automatically bar subsequent re-prosecution. The public's interest in fair trials and reliable judgments is paramount to a defendant's right to have the trial completed. A trial court has wide discretion in granting a mistrial and that determination is entitled to special respect when it is based on substantial concern that the trial's results may be tainted. (Pp. 24-32)

3. Addressing the issue from the perspective of “a reasonable and informed citizen,” the trial court correctly found that defense counsel's representation of Loyal, where counsel had previously represented a material, recanting State's witness, created an unacceptable appearance of impropriety. Counsel's representation of Loyal and his examination of Posey on the witness stand could be compromised by the prior relationship. However, the mistrial was not mandated solely because counsel may have violated the appearance of impropriety standards. The primary basis for the trial court's declaration of a mistrial in this matter was the vindication of the public's interest in a fair trial. (Pp. 32-38)

    Judgement of the Appellate Division is AFFIRMED.

     JUSTICE COLEMAN, dissenting, is of the view that in affirming the Appellate Division in this matter, the Court has elevated the status of the vague and questionable appearance of impropriety ethics rule over and above the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. He believes that the majority decision is not supported by any case in New Jersey or in any other jurisdiction.     

CHIEF JUSTICE PORITZ and JUSTICES O'HERN, LONG, VENIERO and LaVECCHIA join in JUSTICE STEIN's opinion. JUSTICE COLEMAN has filed a separate dissenting opinion.

                            SUPREME COURT OF NEW JERSEY
                         A- 29 September Term 1999

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

                 v.

JOHN LOYAL,

    Defendant-Appellant.

Argued March 13, 2000 -- Decided June 27, 2000

On certification to the Superior Court, Appellate Division.    

James K. Smith, Jr., Assistant Deputy Public Defender, argued the cause for appellant (Ivelisse Torres, Public Defender, attorney).

Gerard C. Sims, Jr., Deputy Attorney General, argued the cause for respondent (John J. Farmer, Jr., Attorney General of New Jersey, attorney).

    The opinion of the Court was delivered by

STEIN, J.    

    This appeal requires us to determine whether it is an abuse of discretion for a trial court in a murder trial to declare a mistrial after discovering that defendant's counsel previously represented a significant State witness. We hold that in the context of this prosecution for a drug-related homicide and other offenses defense counsel's recent representation on drug charges of a material, recanting State's witness constituted an appearance of impropriety that justified the trial court's declaration of a mistrial. In the absence of prejudice to the defendant, or bad faith or inexcusable neglect by the prosecutor, we further hold that defendant's retrial on charges of purposeful-or-knowing murder, aggravated assault and weapons offenses was permissible under the federal and state constitutions' prohibitions against double jeopardy.

                            I

On February 7, 1996, Amedeo Delacruz drove Wanda Colon and Carl Watson to Prince Street in Newark to purchase heroin. Watson had recently ingested methadone to reduce his craving for heroin, but his need continued. Because Watson was violently ill in the car and was apprehensive about the neighborhood, Colon volunteered to purchase heroin for him in an apartment building on Prince Street.
Colon saw Rahnzzan Johnson, Sharonda Posey and John Loyal in the hallway of that building. Colon did not know any of them prior to this encounter. Johnson asked Colon what she wanted and Colon told him that she wanted “a bag of dope.” Colon paid ten dollars for the bag of heroin. The transaction took place quickly and Colon left the building without looking in the bag.
Colon returned to the car and Delacruz drove away. After Colon handed the bag to Watson, he opened it and discovered that it was empty. Watson convinced Colon and Delacruz that they should return to the building. Delacruz parked the car near the entrance to the building and Colon and Watson went inside. The same three individuals were present. Colon identified Johnson as the person who sold her the empty bag of heroin. After a brief argument between Loyal and Watson, Loyal gave Watson another bag that contained heroin. Watson then told Colon to leave the building.
As Colon exited the building, she heard Watson and Johnson talking to each other as they followed her towards the car. Loyal exited the building directly behind the two men. At that point, Johnson ordered Loyal to shoot Watson. Loyal took a gun out of his jacket and shot Watson several times, causing his death. Loyal then pointed the gun in Colon's direction and warned her to leave before he “blew [her] head off.” Colon was shocked and immobilized until Johnson pushed her towards the street. Colon returned to the car to find Delacruz terrified and unable to drive. Colon managed to drive the car away from the scene although she was in the passenger seat. When Delacruz began to react, he drove to a nearby police station after Colon told him to do so.
Colon explained what had occurred to a lieutenant at the police station before going to a back room to calm down. After waiting about one-half hour, Detective Ronald Soto of the Newark Police Department interviewed Colon. Soto asked her what had happened and then asked her to look at two photo books to try to identify the shooter. Colon looked through the first book without success. On the first page of the second book, she misidentified a photo of Omar Smalls as the man who sold her the heroin. Soto, based on his street knowledge, knew that Smalls was connected to an individual nicknamed “Tank,” whose name was John Loyal. Soto had been actively investigating Loyal on drug related charges and had two warrants for his arrest. Soto decided to prepare a photographic array for Colon and took a picture of Loyal from the file on his desk relating to the drug investigation.
Colon completed her review of the second book without identifying the shooter. When Colon finished looking through the books, she stood up and walked over to Detective Soto's desk. Colon saw the picture of Loyal on Soto's desk and immediately identified Loyal as the shooter. When Soto asked her if she might be confused or still in shock, Colon insisted that Loyal was the shooter and said that she was sure.
Following jury selection, defendant's trial for murder and other lesser charges commenced on April 16, 1997. Colon testified that she “can't confuse [Loyal's] face with nobody's face,” and stated that she “would never forget that face” when she identified defendant as the shooter. On the following day, Colon finished her testimony and the State then called Sharonda Posey, the other woman present at the scene, as a witness. She testified differently from the description of the incident she had provided in her sworn statement to the police. Posey then testified that her police statement was false. The trial court stopped the proceedings and excused the jury to conduct a Gross hearing, see State v. Gross, 121 N.J. 1, 17 (1990), a procedure designed to determine whether a sworn statement given to the police is reliable and can be introduced substantively into evidence if the witness later recants the statement during his or her testimony.
During the three-day Gross hearing, both Johnson and Posey recanted the sworn statements that they gave to the police implicating Loyal as the shooter. Johnson's description of the events leading up to the shooting was similar to the facts recounted in Colon's testimony. Johnson, however, recognized the shooter as an “individual that comes in the neighborhood robbing, sticking up individuals, drug dealers.” Johnson testified that he decided to tell the police “what they wanted to hear” to avoid a charge of conspiracy to commit murder because Watson had been killed after purchasing drugs from Johnson. Johnson admitted that everything else in his sworn statement was true except for the identity of the shooter. Detective Manuel Garcia, the officer who took Johnson's statement, refuted Johnson's testimony and testified that he did not threaten Johnson or promise him anything in return for his sworn statement.
Posey testified that she was selling drugs with her boyfriend, Johnson, at the time of the shooting. Posey stated that Johnson and Watson were exiting the building together when someone came from the side of the building and shot Watson approximately ten times. Posey alleged that the police threatened her with life imprisonment if she did not identify Loyal as the shooter from a photo array. Posey testified that she implicated Loyal as the shooter because she thought she otherwise would go to jail and lose her children. Kirk Schwindel, an employee of the Essex County Prosecutor's Office who was present when Posey made her statement, testified that Posey voluntarily identified Loyal as the shooter and that she was not threatened in any way.
Defense counsel argued that the Johnson and Posey statements were unreliable because they were induced by police officers who threatened potential criminal prosecutions. The State argued that Johnson and Posey testified voluntarily and that the specific testimony about the incident was substantially similar to Colon's, except for the detailed description of the shooting. The court was satisfied that the statements were sufficiently reliable to be admitted into evidence.
After making that ruling, and before the jury returned to the courtroom, the court asked Posey whether she had ever been represented previously by defendant's counsel, William Cucco, who was employed as an attorney for the Essex County Public Defender's office. Posey replied that Cucco never represented her in any prior criminal matter. The prosecutor reminded Posey about her prior guilty plea on January 23, 1995 for possession with intent to distribute a controlled dangerous substance within one thousand feet of school property, and her sentencing hearing on February 14, 1995 for that offense. She replied that she did not think that Cucco was her lawyer and recalled only that she was represented by the Public Defender's office. The prosecutor had investigated Posey's prior convictions earlier that morning and learned that Cucco previously had represented Posey in his capacity as public defender. Cucco did not remember that representation but acknowledged that, because those events occurred over two years ago, he did not know for certain whether he had represented Posey. While investigating the Loyal case, Cucco interviewed Posey in prison and did not recognize her. Posey, likewise, did not recognize Cucco.
The trial court considered whether it should disqualify Cucco from representing Loyal. Cucco argued that the prosecutor had provided him with Posey's Judgment of Conviction on the drug charges and that that document did not indicate that Cucco had represented Posey. Cucco also noted that Posey's drug case was unrelated to the Loyal case, had been resolved years ago, and that neither party remembered the prior representation. The court ordered an independent attorney to advise Posey of her rights under RPC 1.7, the general rule governing conflicts of interest. Posey continued to insist that she had not been represented previously by Cucco, but agreed to waive any potential conflict of interest. After consulting with Cucco, Loyal also waived any potential conflict of interest that might arise during the cross-examination of Posey. The prosecutor then requested a mistrial because Cucco had represented Posey in the past. The prosecutor noted that, if convicted, defendant would be able to argue that he received ineffective assistance of counsel because there was a conflict between Cucco's current representation of the defendant and his prior representation of the State's witness. The court pointed out that both sides had waived any potential conflict, but the prosecutor did not believe that the Rules of Professional Conduct permitted the conflict to be waived. The prosecutor also contended that the jury needed to be informed of the prior representation, because it might be germane to the inconsistency between Posey's testimony and her prior sworn statement. Desiring to research the issue independently, the court reserved decision on the motion for a mistrial. The jury then reentered the courtroom, and the prosecutor conducted his direct examination of Posey for the remainder of the morning.
That afternoon the prosecution withdrew its motion for a mistrial, noting that the record indicated that defendant made an intelligent and knowledgeable waiver of any potential conflict and that Cucco did not possess any confidential information about Posey. However, the court declared a mistrial sua sponte over defendant's objection and despite the prosecutor's election not to seek a mistrial. The court determined that State v. Needham, 298 N.J. Super. 100 (Law Div. 1996), mandated a mistrial, stating that that decision did not permit either party to waive a possible conflict. The court reasoned:

    When an attorney's former client is the
State's chief witness, it is beyond dispute
that an appearance of impropriety is created
requiring the attorney be disqualified.
There is an appearance of impropriety.

    Even though I don't think Miss Posey
could be classified as the _ _ as the State's
chief witness, she clearly is a key witness
in the fact that she indicates in a statement
that the State is seeking to introduce that
the defendant is the shooter. She says that.
She is a key witness, though not the only
key witness.

After discharging the jury, the court restated its reasons for declaring a mistrial:
First of all, as the Court stated in Needham,
this Court does not take lightly its decision
to disqualify Mr. Cucco, Mr. Loyal's attorney.
I do not and will not suggest or imply that
Mr. Cucco did anything wrong or will do
anything improper or unethical.

    However, because of the very strong
possibilities of the appearance of impropriety
of a recanting eyewitness to a homicide being
represented by defense counsel, I am satisfied
that I must disqualify Mr. Cucco from
continued representation of Mr. Loyal.

Cucco asked that the mistrial be declared with prejudice because Loyal's right to a speedy trial had been compromised. The court informed Cucco of the necessity of filing a motion seeking that relief.
In May 1997, the trial court held a hearing on defendant's motion for dismissal of the indictment based on a double jeopardy violation. The trial court again stated its reason for declaring the mistrial:
I did not find that Mr. Cucco was in
[possession] of some specified, specific
information that he learned from his
representation of Miss Posey that would, one,
lead him to a cross-examination based on
information garnered while he was
representing Miss Posey. I did not
disqualify Mr. Cucco because I felt that
because of that representation of Miss Posey,
the cross-examination of Miss Posey while
representing Mr. Loyal would be less than
adequate. Less than vigorous. I
specifically disqualified Mr. Cucco because
of the appearance of impropriety.        

    Let's remember what was happening: Miss
Posey was on the stand recanting, indicating
that this defendant was not the shooter. Her
boyfriend had already recanted and clearly,
there was a jury question established as to
who this jury was going to believe; or, what
part of the testimony they were gonna believe.
Were they going to believe Miss Colon, who
identified Mr. Loyal as the shooter? Were
they going to believe Miss Posey? And if so,
were they going to believe the sworn statement
given? Were they going to believe the
testimony that she was about to proffer as to
why she gave the sworn statement? That is,
that she was forced to.

    . . . I don't sit here in a vacuum. I'm
well aware of the family of the deceased sitting in the courtroom. The justice system
does not need a not guilty verdict when, in
fact, there are grounds that _ _ I mean, yes,
I do not know what the jury was going to say.
I do not know what the jury was going to
believe. But what the State and _ - does not
need, what the court system does not need is
a not guilty verdict. Because, perhaps, the
family of the victim believes that Mr. Cucco
or Mr. Loyal got some special advantage
because Mr. Cucco had represented both Mr.
Loyal and the recanting witness.    
                                    
    The appearance of impropriety was such
that in the interest of justice, once it was
determined that the recanting witness was
represented by Mr. Cucco, I was satisfied that
I must declare a mistrial. So that when a
jury makes a determination as to the guilt or
innocence of Mr. Loyal, there is not the
specter of Mr. Loyal getting an advantage if
he's found not guilty because defense attorney
also represented an eyewitness.
The only issue that concerned the court at the hearing was whether Cucco was provided a complete copy of Posey's Judgment of Conviction by the prosecutor. The court reserved decision on whether or not there was prosecutorial misconduct that would require defendant's indictment to be dismissed because double jeopardy had attached.
The court subsequently denied defendant's motion for dismissal of the indictment based on double jeopardy. The court again explained the reasons for declaring a mistrial:
I made a determination that the appearance
of having a recanting witness now testifying
in favor of defendant _ _ in a way favorable to the defendant, who is represented by a
defense attorney, gave the appearance that
if, in fact, there was a not guilty verdict,
I can see something - - somebody saying, boy,
something smelly there; something is fishy
with this thing. She's now recanting. I
felt that it was appropriate to declare the
mistrial and have a new attorney appointed.

The court relied primarily on State v. Nappo, 185 N.J. Super. 600 (Law Div. 1982), and State v. Laganella, 144 N.J. Super. 268 (App. Div.), appeal dismissed, 74 N.J. 256 (1976), in holding that the prosecutor's actions or inactions did not rise to the level of bad faith or inexcusable neglect, and that the inadvertent failure to notify Cucco that he had previously represented a State's witness did not warrant the extreme sanction of dismissal of the indictment.
Loyal's second trial began in July 1997. Johnson testified that parts of his sworn statement were false and that Loyal did not shoot Watson. Johnson's testimony mirrored the testimony he gave during the Gross hearing at Loyal's initial trial. Detective Garcia testified about the investigation and the procedures used to acquire Johnson's voluntary sworn statement. Colon's testimony at the second trial described the incident and implicated Loyal as the shooter. Posey did not testify at defendant's second trial. The jury convicted defendant of murder, aggravated assault, and related weapons offenses. Prior to being sentenced, defendant renewed his motion for dismissal of the indictment and argued that double jeopardy barred the convictions because prosecutorial misconduct created an opportunity for a mistrial, or alternatively, because there was not a manifest necessity to declare a mistrial based on the potential conflict. The trial court denied the motion and sentenced defendant to life imprisonment with a thirty-year parole ineligibility period on the murder charge, and to concurrent sentences on the remaining charges. The Appellate Division affirmed defendant's convictions and sentence in an unreported opinion. We granted certification. 162 N.J. 198 (1999).

II
A
Attorneys who practice law in New Jersey are required to comply with strict ethical rules concerning actual or possible conflicts of interests. Bruce A. Green, Conflicts of Interest in Legal Representation: Should the Appearance of Impropriety Rule Be Elmininated in New Jersey -- Or Revived Everywhere Else?, 28 Seton Hall L. Rev. 315, 318-19 (1997). In the case of a former client, attorneys must comply with RPC 1.9: (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.

[Emphasis added.]

RPC 1.7(c) is part of the general rule that prohibits an attorney from representing a client when that representation would create a conflict of interest. RPC 1.7 forbids an attorney from representing a client in a situation that would create an appearance of impropriety, even if there were no actual conflict:
(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.

[Emphasis added.]

    An appearance of impropriety must be “something more than a fanciful possibility” and “must have some reasonable basis.” In re Opinion No. 653, 132 N.J. 124, 132 (1993) (quoting Higgins v. Advisory Comm. on Prof'l Ethics, 73 N.J. 123, 129 (1977)). The appearance of impropriety “alone may be sufficient to present an ethical problem even though no actual impropriety exists.” Higgins, supra, 73 N.J. at 129. The doctrine's purpose is “to bolster the public confidence in the integrity of the legal profession.” State v. Catanoso, 222 N.J. Super. 641, 648 (Law Div. 1987) (citing In re Cipriano, 68 N.J. 398, 403 (1975)). Although the doctrine's imprecision has provoked criticism and requests for its rescission as applied to private civil litigation, see Report of the Professional Responsibility Rules Committee, 158 N.J.L.J. 472 (1999), the doctrine's relevance in criminal matters and to issues of public-entity representation remains unchallenged. This Court recently declined to implement a recommendation to eliminate the appearance of impropriety standard from the Rules of Professional Conduct. See Notice to the Bar, 159 N.J.L.J. 843 (2000).
In determining whether there is a reasonable basis for finding an appearance of impropriety, we must view the conduct as would an “ordinary knowledgeable citizen acquainted with the facts.” Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 216 (1988)(quoting RPC 1.7(c)(2)). That inquiry is highly fact sensitive; it does not occur in a vacuum. In re Opinion No. 415, 81 N.J. 318, 325 (1979). Where there exists an appearance of impropriety in an attorney's representation of a client, that representation generally must cease. In re Petition for Review of Opinion No. 569, 103 N.J. 325, 334-35 (1986); Ross v. Canino, 93 N.J. 402, 409-10 (1983); Opinion No. 415, supra, 81 N.J. at 325. Once an appearance of impropriety is found, “only in extraordinary cases should a client's right to counsel of his or her choice outweigh the need to maintain the highest standards of the profession.” Dewey, supra, 109 N.J. at 220.
When an appearance of impropriety is found in a criminal matter, disqualification of an attorney routinely is required. In State v. Morelli, 152 N.J. Super. 67, 74 (App. Div. 1977), defendant's counsel was disqualified because his firm represented an important prosecution witness and employed an attorney who had worked in the prosecutor's office while the defendant was being investigated. The Appellate Division, citing caselaw as well as opinions of the Advisory Committee on Professional Ethics, concluded that a defense attorney must be disqualified when there is a “risk of the unacceptable appearance of possible impropriety.” Id. at 72 (citing State v. Lucarello, 135 N.J. Super. 347 (App. Div.), aff'd o.b., 69 N.J. 31 (1975); State v. Jaquindo, 138 N.J. Super. 62 (App. Div.), aff'd sub nom., State v. Rizzo, 69 N.J. 28 (1975); In re Opinion 361, 100 N.J.L.J. 1 (1977); In re Opinion 340, 99 N.J.L.J. 610 (1976); In re Opinion 276, 96 N.J.L.J. 1461 (1973); In re Opinion 207, 94 N.J.L.J. 451 (1971)). Defendant's waiver of his right to appeal a possible conviction based on a claim of ineffective assistance of counsel was found to be irrelevant. Morelli, supra, 152 N.J. Super. at 74.
In In re Garber, 95 N.J. 597, 598 (1984), this Court suspended an attorney from the practice of law for one year because he represented a murder witness who recanted a positive identification of the defendant, an individual whom the attorney had represented earlier in matters unrelated to the murder indictment. Id. at 605. The Court held that a “recanting witness is confronted by enormous legal pitfalls and thus is particularly in need of careful, objective and sound legal advice.” Ibid. The Court found that the attorney's “intertwined connections” with both parties “presented an indelible appearance of impropriety that breaches ethical standards.” Id. at 610. The Court also was concerned with “the attendant public perception that, as a consequence of respondent's compromised position, professional probity has been diluted and the administration of justice perverted.” Id. at 611. See also In re Cohn, 46 N.J. 202, 213 (1966) (noting that public knowledge of attorney's dual representation of defendant and witness testifying against that defendant “would engender, at the least, a serious doubt about the integrity of the proceeding.”). The Garber Court found that the witness's consent was immaterial and ineffective because “[t]here are certain conflicts that are so egregious that they cannot be cured by consent.” Id. at 613-14.
    Likewise, in Catanoso, supra, the Law Division found that if the defendant's counsel acted as a zealous advocate, he would have had to “breach the duty of loyalty that he owes to his former client,” the State's main witness against the defendant. 222 N.J. Super. at 648. Therefore, although the defendant was willing to waive the right to cross-examine the State's witness so that he could maintain his choice of counsel, the Law Division observed that the defendant's counsel's prior representation of the witness may have permitted him to acquire confidential information that could be used favorably by the defendant. Id. at 645. See also Reardon v. Marlayne, Inc., 83 N.J. 460, 473 (1980) (holding that presumption of access to and knowledge of confidential information between attorney and former client, notwithstanding attorney's declarations to the contrary, may not be rebutted). The Law Division found that defendant's counsel created a “high risk of impropriety” when the State's witness “stands to be discredited, on cross-examination, by his former attorney.” Catanoso, supra, 222 N.J. Super. at 648. The court concluded that “[i]f there is an 'adequate factual basis' for an informed citizen to conclude that there would be a 'high risk' of impropriety if [the] defendant's lawyer continued to represent his client, then the lawyer must be disqualified.” Ibid. (citing In re Opinion No. 569, supra, 103 N.J. at 331). See also Reardon, supra, 83 N.J. at 471 (stating that “[i]f there be any doubt as to the propriety of an attorney's representation of a client, such doubt must be resolved in favor of disqualification.”).
In Needham, supra, a case relied on by the trial court in the matter before us, the issue was “whether a defense attorney must be disqualified upon motion by the State when that attorney represented one of the chief prosecution witnesses in an entirely unrelated matter.” 298 N.J. Super. at 102. The defendant was charged with multiple offenses and Officer Warner was expected to testify against the defendant. Ibid. The defendant's counsel had represented Warner in an indictable criminal matter seven years earlier and, more recently, in an internal affairs investigation that did not culminate in formal charges. Id. at 102-03. The Law Division held that that prior representation created an appearance of impropriety and warranted the disqualification of the defendant's counsel because “[w]hen an attorney's former client is the State's chief witness, it is beyond dispute that an appearance of impropriety is created.” Id. at 103.
The Needham court found that “[i]f the defendant is acquitted as a result of the trial, an inference of wrongdoing is created by the perception that the acquittal was the result of the relationship or influence between [the defendant's counsel] and Officer Warner.” Id. at 105. The court also was concerned that Warner could provide strategic information to assist his former attorney, that the defendant's counsel might not cross examine his former client vigorously, or that the defendant's attorney might use confidential information from the prior attorney-client relationship to cross-examine his former client. Id. at 105-06. The court concluded that an adequate factual basis existed for an informed citizen to perceive an appearance of impropriety and that the defendant's attempt to waive the appearance of impropriety did not cure the disqualification of his attorney. Id. at 107. The court did not “intend to suggest or imply that [the defendant's counsel] has done, or will do, anything improper or unethical” but “because the possibilities of impropriety are so strong and because there is a risk that [the] defendant will not be adequately represented,” the court disqualified the defendant's attorney. Ibid.
    That defendant was prepared to waive any potential conflict of interest resulting from his counsel's prior representation of Posey does not absolve the trial court of the responsibility for assuring the fairness and reliability of the trial. In Wheat v. United States, 486 U.S. 153, 108 S. Ct. 1692, 100 L. Ed.2d 140 (1988), the defendant in a drug conspiracy prosecution requested that the attorney for two of his co-defendants represent him in place of his original counsel, informing the court of that request two days before trial. The prosecution objected because of the potential for conflict between counsel's obligations to the co-defendants and his proposed responsibility as defendant's trial counsel. Defendant and the co-defendants agreed to waive any conflict, and defendant emphasized his right to select his own counsel. The district court denied the requested substitution because of counsel's conflict of interest. Defendant was tried and convicted, represented by his original counsel. The Ninth Circuit Court of Appeals affirmed the conviction. U.S. v. Wheat, 813 F.2d 1399 (1987). The United States Supreme Court affirmed, rejecting defendant's contention that the waivers by the defendant and co-defendants adequately addressed the conflict issue:
        Federal courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them. . . . Not only the interest of a criminal defendant but the institutional interest in the rendition of just verdicts in criminal cases may be jeopardized by unregulated multiple representation.

            . . . .

        Nor does a waiver by the defendant necessarily solve the problem, for we note, without passing judgment on, the apparent willingness of Courts of Appeals to entertain ineffective-assistance claims from defendants who have specifically waived the right to conflict-free counsel.

            . . . .
        
            For these reasons we think the district court must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses.
        
            [Id. at 160-63, 108 S. Ct. at ___ ___, 100 L. Ed. 2d at 149-51.]

    To the same effect is United States, ex. rel. Stewart v. Kelly, 870 F.2d 854 (2d Cir. 1989). There, the Court of Appeals reversed the district court's grant of a habeas corpus petition and sustained the trial court's refusal to permit defendant to be represented by his preferred counsel because of that counsel's prior representation of a prosecution witness. Rejecting defendant's contention that his waiver of counsel's conflict should be controlling, the Court of Appeals observed:
        There is a presumption in favor of a defendant's choice of counsel, but this may be overcome "by a showing of a serious potential for conflict." . . . In balancing what can be competing interests of the Sixth Amendment, the trial court has "an independent duty to ensure that criminal defendants receive a trial that is fair." Id. at 856 (quoting Wheat, supra, 486 U.S. at 161, 164, 108 S. Ct. at 1697, 1699, 100 L. Ed. 2d at 150, 152).

B
Individuals are constitutionally protected against being tried twice for the same offense. The United States Constitution states: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. Likewise, New Jersey's Constitution provides: “No person shall, after acquittal, be tried for the same offense.” N.J. Const. art. I, ¶ 11. Additionally, N.J.S.A. 2C:1-9 states:
             A prosecution of a defendant for a
        violation of the same provision of the statutes
based upon the same facts as a former
prosecution is barred by such former
prosecution under the following circumstances:
. . .
            d. The former prosecution was improperly terminated. Except as provided in this
subsection, there is an improper
termination of a prosecution if the
termination is for reasons not amounting
to an acquittal, and it takes place after
the jury was impaneled and sworn. . . .
Termination under any of the following
circumstances is not improper:
. . .
            (3) The trial court finds that the
        termination is required by a sufficient legal
reason and a manifest or absolute or overriding         necessity.

Termination of a trial after jeopardy attaches does not automatically bar subsequent re-prosecution. State v. Lynch, 79 N.J. 327, 342 (1979). Only improper termination of proceedings by a trial court bars a retrial. State v. Gallegan, 117 N.J. 345, 353 (1989); State v. Dunns, 266 N.J. Super. 349, 363 (App. Div.), certif. denied, 134 N.J. 567 (1993); State in the Interest of D.P., 232 N.J. Super. 8, 13 (App. Div. 1989). Where the court finds a sufficient legal reason and manifest necessity to terminate a trial, the defendant's right to have his initial trial completed is subordinated to the public's interest in fair trials and reliable judgments. Wade v. Hunter, 336 U.S. 684, 689, 69 S. Ct. 834, 837, 93 L. Ed. 974, 978 (1949).
Whether “manifest necessity” or “the ends of public justice” require declaration of a mistrial depends on the unique facts of the case and the sound discretion of the trial court. That test was first articulated in United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L. Ed. 165, 165 (1824), where the Supreme Court observed that
the law has invested courts of justice with
the authority to discharge a jury from giving
any verdict, whenever, in their opinion,
taking all the circumstances into consideration,
there is a manifest necessity for the act, or
the ends of public justice would otherwise be
defeated. They are to exercise a sound
discretion on the subject; and it is impossible
to define all the circumstances which would render
it proper to interfere. To be sure, the power
ought to be used with the greatest caution,
under urgent circumstances, and for very plain
and obvious causes.

That standard has guided judges in making the discretionary decision whether particular trial conditions warrant a sua sponte mistrial declaration. Arizona v. Washington, 434 U.S. 497, 505 06, 98 S. Ct. 824, 830, 54 L. Ed.2d 717, 728 (1978); United States v. Jorn, 400 U.S. 470, 481, 91 S. Ct. 547, 555, 27 L. Ed.2d 543, 554 (1971); Gori v. United States, 367 U.S. 364, 367-68, 81 S. Ct. 1523, 1526, 6 L. Ed.2d 901, 904-05 (1961); State v. Rechtschaffer, 70 N.J. 395, 405 (1976); State v. Farmer, 48 N.J. 145, 170 (1966), cert. denied, 386 U.S. 991, 87 S. Ct. 1305, 18 L. Ed.2d 335 (1967).
Under the standard enunciated in Perez, supra, a trial court has wide discretion in granting a mistrial. See, e.g., Illinois v. Somerville, 410 U.S. 458, 462, 93 S. Ct. 1066, 1069, 35 L. Ed.2d 425, 429 (1973); Gori, supra, 367 U.S. at 368, 81 S. Ct. at 1526, 6 L. Ed. 2d at 904; Farmer, supra, 48 N.J. at 171. Where a trial court declares a mistrial because of a substantial concern that the trial's result may be tainted, “the trial judge's determination is entitled to special respect.” Arizona v. Washintgon, supra, 434 U.S. at 510, 98 S. Ct. at 833, 54 L. Ed. 2d at 731. “Where . . . the trial court acts sua sponte, over the objections of both parties, propriety of the mistrial depends upon the sound exercise of the court's discretion.” Rechtschaffer, supra, 70 N.J. at 406. In Rechtschaffer, we discussed substantial United States Supreme Court precedent that established pertinent standards to determine whether declaration of a mistrial was proper:
The common threads that run through the
Supreme Court cases are centered about the
propriety of the trial court's granting sua
sponte the mistrial and its cause. Did the
trial court properly exercise its discretion
so that a mistrial was justified? Did it
have a viable alternative? If justified, what
circumstances created the situation? Was it
due to prosecutorial or defense misconduct?
Will a second trial accord with the ends of
public justice and with proper judicial
administration? Will the defendant be
prejudiced by a second trial, and if so, to
what extent?

    [Id. at 410-11. (citation omitted).]

In that case, we concluded that neither manifest necessity nor the ends of public justice warranted the grant of the partial mistrial because the mistrial was not justified and the defendant was prejudiced by the mistrial declaration. Id. at 415.
In Arizona v. Washington, supra, the Supreme Court examined whether a mistrial was a manifest necessity where defendant's counsel made an improper and prejudicial comment during his opening statement. 434 U.S. at 498, 98 S. Ct. at 826, 54 L. Ed. 2d at 723. The federal District Court had concluded that the trial court did not adequately consider alternatives to a mistrial and did not made a finding of manifest necessity; the Court of Appeals for the Ninth Circuit affirmed. Id. at 501-02, 98 S. Ct. at 828, 54 L. Ed. 2d at 725-26. The Supreme Court reversed the Ninth Circuit and concluded that the trial court exercised sound discretion when it declared a mistrial because it was concerned about the possibility of a double jeopardy violation, and that the trial court did not act precipitously in response to the prosecutor's request for a mistrial. Id. at 514 15, 98 S. Ct. at 835, 54 L. Ed. 2d at 733-34. Similarly in Illinois v. Somerville, supra, the Supreme Court held that if a mistrial vindicates a significant state policy and “aborts a proceeding that at best would have produced a verdict that could be upset by one of the parties,” a defendant's interest may be outweighed by the “equally legitimate demand for public justice.” 410 U.S. at 471, 93 S. Ct. at 1074, 35 L. Ed. 2d at 435. New Jersey's double jeopardy jurisprudence is coextensive with federal law. Lynch, supra, 79 N.J. at 340; Rechtschaffer, supra, 70 N.J. at 404; Farmer, supra, 48 N.J. at 168. In Farmer, supra, the defendant's first trial for murder ended when the trial court declared a mistrial sua sponte over the objections of both the State and defendant. 48 N.J. at 167. The mistrial was declared on the first day of trial at which evidence was presented to the jury, because the prosecutor committed a good faith violation of a discovery order. Id. at 173. On appeal, we noted that
    [a] wide range of discretion is recognized in
    the trial judge, who has his finger on the pulse
    of the proceedings. If in his judgment emergent
    conditions come into being which persuade him
    that the ends of justice for the defendant and
    the State cannot be achieved without aborting
    the trial, neither the Federal nor the State
    Constitution proscribes such an order. This is
    particularly true where the circumstances which
    to him compel the order do not bespeak bad
    faith or oppressive conduct by the prosecution
    or a desire or effort to improve the chances of
    conviction at a subsequent trial.

                [Id. at 171.]
        
We balanced the defendant's and the State's interests in determining whether the defense of double jeopardy barred the retrial of defendant for murder:
If some unexpected, untoward and undesigned
incident or circumstance arises which does not
bespeak bad faith, inexcusable neglect or inadvertence or oppressive conduct on the part
of the State, but which in the considered
judgment of the trial court creates an urgent
need to discontinue the trial in order to
safeguard the defendant against real or
apparent prejudice stemming therefrom, the
Federal and State Constitutions do not stand in
the way of declaration of a mistrial. . . .
Moreover, if an incident or circumstance of
that nature moves the court to order a
mistrial not only to safeguard the right of
the defendant to a full and fair trial, but
also to protect the right of society to have
its trial processes applied fully and fairly
in the due administration of the criminal law,
there is even less basis for a claim of
trespass upon the privilege against double
jeopardy. Clearly the societal right to have
the accused tried and punished if found guilty
stands side by side with the right of the
accused to be prosecuted fairly and not
oppressively.

[Id. at 174-75 (citations omitted).]

We noted that “there is no over-all formula, no hard and fast rule for determining when an order of mistrial will cause the jeopardy bar to spring into being, [and that] each case must depend upon its own facts and the urgency of its circumstances.” Id. at 177. After a careful review of the record, we concluded that the trial court's
        reluctant declaration of a mistrial constituted
        a reasonable exercise of judicial discretion,
        and that it represented the most sensible
        balancing of the interests of the defendant and
        the public. We have no doubt it came from a
        conscience acutely aware not only of the
        sacredness of the life at stake before him,
        but also of the sacredness of the life that         was taken.

                    [Id. at 174.]
    In this case, the trial court relied on Laganella when it denied defendant's motion for dismissal of the indictment prior to defendant's second trial. In Laganella, supra, the defendant's motion for a mistrial was granted by the trial court. 144 N.J. Super. at 277. The Appellate Division found that “the dismissal of the indictment below was a mistaken exercise of discretion.” Id. at 283. In remanding the case for a new trial, the Appellate Division held “that important interests other than those of defendant alone are involved in the trial of criminal cases.” Id. at 287. The Appellate Division rejected following a “hard and fast rule” or “ritualistic formula” and noted that “mere empanelment of a jury and commencement of a case does not automatically provide a criminal defendant with a bar to further prosecution.” Id. at 286-87. Because the trial court and the State had acted in good faith, and the defendant would not be subjected to significant annoyance, harassment or expense, the judgment of dismissal was reversed. Id. at 288-90. The Appellate Division concluded that
[t]o apply the bar of double jeopardy in the
instant matter, absent compelling considerations
of fairness to [the] defendant or for the purpose
of protection against governmental action found
by us not to be arbitrary, would disserve [the public interest], for there still has been no
trial on the merits.

[Id. at 290.]
III

Against this jurisprudential backdrop we must determine whether defense counsel's prior representation of Sharonda Posey created an appearance of impropriety and whether the trial court properly declared a mistrial. In considering whether a lawyer's responsibility to a client is compromised by his representation of a former client and constitutes an appearance of impropriety, we address the issue from the perspective of “a reasonable and informed citizen.” Opinion No. 653, supra, 132 N.J. at 132. We also consider whether the representation posed a “substantial risk of disservice either to the public interest or the interest of one of the clients.” Dewey, supra, 109 N.J. at 216 (quoting RPC 1.7(c)(2)).
The trial court correctly found that Cucco's representation of defendant created an unacceptable appearance of impropriety. The trial court reasoned that Cucco may have obtained confidential information during his prior representation of Posey that he could now use to impeach her credibility on cross examination. We note that Posey's prior conviction was drug related and that defendant Loyal was charged with a murder that occurred during a drug transaction. Additionally, because of their prior relationship, the trial court may have been concerned that Cucco would cross-examine Posey less vigorously at the expense of defendant's interests. Moreover, Posey's decision to recant her statement implicating defendant enhanced the trial court's concerns. The prosecutor had contended that the jury would have to be notified of Cucco's prior representation of Posey in order to assess the proper weight to be given to both Posey's testimony and her statement to police. Both Posey's interest and defendant's interest may have been disserved by counsel's prior relationship with Posey.
Additionally, the public interest would have been disserved by Cucco's continued representation of defendant. The trial court noted that an independent observer might believe that “something is fishy” when a witness who was previously represented by defendant's counsel recants a prior statement that identified defendant as the shooter. As we stated in Garber:
    The public itself has the greatest stake in
    the propriety of the legal relationships
    that are created to properly administer
    criminal justice. . . . Clearly, the public
    interest in the administration of criminal
    justice in the circumstances of this case
    compelled the unbiased and unstinted
    representation of [the witness].

        [Garber, supra, 95 N.J. at 614 (quotation omitted).]
In the context of this prosecution for a drug-related murder and other offenses, we are convinced that an appearance of impropriety existed where defendant's counsel previously had represented on drug charges a material recanting State's witness. Cucco's and Posey's failure to recall that prior representation or to recognize each other prior to trial is of no consequence.
    Under those circumstances, we are persuaded that there was manifest necessity to declare a mistrial, considering the “ends of justice for the defendant and the State.” Farmer, supra, 48 N.J. at 171. In our view, the trial court exercised sound discretion in declaring a mistrial and that decision is entitled to deference. Ibid. (noting that “appellate courts must realize that under our system the conduct of a trial is committed to the trial judge, and that in appraising the exercise of his discretionary action a wise and tolerant restraint must be practiced if the separate levels of the judicial process are to be maintained.”). See also Arizona v. Washington, supra, 434 U.S. at 515-16, 98 S. Ct. at 835-36, 54 L. Ed. 2d at 734 (holding that trial court's responsible and deliberate actions supported mistrial declaration); State v. Modell, 260 N.J. Super. 227, 239 (1992)(recognizing “that the trial judge must be given a wide range of discretion in determining whether a mistrial should be declared.”).     Our dissenting colleague disagrees, expressing the view that a trial court cannot “unilaterally discontinue a criminal trial to vindicate [the appearance of impropriety rule], without regard for the Double Jeopardy Clause.” Post at ___ (slip op. at 25.). That observation misperceives the interest vindicated by the trial court's declaration of a mistrial. As the United States Supreme Court observed in Wheat, supra, 488 U.S. at 160, 108 S. Ct. at __, 100 L. Ed. 2d at 149-50 (1988):
        Federal courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them. . . . Not only the interest of a criminal defendant but the institutional interest in the rendition of just verdicts in criminal cases may be jeopardized by unregulated multiple representation.

    Other courts have recognized the necessity for declaring a mistrial to preclude a lawyer's actual or potential conflict of interest from tainting the fairness of a criminal trial. In In re Hoang, 781 P.2d 731 (Kan. 1989), the Kansas Supreme Court upheld the declaration of a mistrial by a trial court “confronted with facts indicating that defense counsel in a criminal case may have a conflict of interest due to prior representation of a prosecution witness.” Id. at 732. Observing that the trial court “had a duty 'to maintain the integrity of the administration of the justice system,” id. at 733, the court rejected defendant's double jeopardy challenge on the basis that the mistrial declaration satisfied the “manifest necessity” standard. Id. at 738.
    Similarly, in Commonwealth v. Deihl, 615 A.2d 690 (1992), the Pennsylvania Supreme Court upheld a trial court's mistrial declaration after the trial court learned that the district attorney had previously represented the defendant in a custody proceeding. The trial court was concerned after “the jury learned that the person who was seeking [defendant's] conviction was the same person who . . . had advised him with regard to [a] visitation order.” Id. at 692. Rejecting defendant's contention that principles of double jeopardy precluded a retrial, the Pennsylvania Supreme Court observed that
        the ends of public justice would have
        otherwise been defeated without the trial
        court's sua sponte declaration of a mistrial.
        The trial court was insuring that Appellant
        would receive a trial by a fair and
     &nbs