SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0592-20

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

DAWAN INGRAM,

Defendant-Respondent.

________________________

Argued March 16, 2021 – Decided April 1, 2021

Before Judges Haas and Natali.

On appeal from an interlocutory order of the Superior 

Court of New Jersey, Law Division, Essex County, 

Indictment No. 14-03-0827.

Frank J. Ducoat, Special Deputy Attorney 

General/Acting Assistant Prosecutor, argued the cause 

for appellant (Theodore N. Stephens II, Acting Essex 

County Prosecutor, attorney; Frank J. Ducoat, of 

counsel and on the brief).

Alison Perrone, First Assistant Deputy Public 

Defender, argued the cause for respondent (Joseph E. 

Krakora, Public Defender, attorney; Alison Perrone, of 

counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2

A-0592-20

PER CURIAM

By leave granted, the State appeals from the Law Division's September 

28, 2020 order, which denied its motion to disqualify Andrew Burroughs, Esq., 

an attorney assigned by the Office of the Public Defender (OPD), from 

representing defendant in connection with his petition for post-conviction relief 

(PCR). The State asserted that Burroughs was barred from serving as 

defendant's designated attorney under RPC 1.9(a) because Burroughs had 

previously worked as an assistant prosecutor on the case that led to the same

convictions from which he was now seeking PCR on defendant's behalf. 

After considering this contention in light of the record and the applicable 

law, we agree that RPC 1.9(a) clearly prohibits Burroughs from representing 

defendant on his PCR petition. Therefore, we reverse the September 28, 2020 

order and remand for further proceedings.

I.

By way of background, RPC 1.9(a) addresses a lawyer's duties to former 

clients and states:

A lawyer who has represented a client in a matter shall 

not thereafter 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 
3

A-0592-20

former client unless the former client gives informed 

consent confirmed in writing.[1]

As our Supreme Court stated in its seminal decision interpreting this Rule:

In clear language, RPC 1.9(a) begins with a prohibition 

that precludes an attorney from engaging in the 

representation of an adverse client in the same matter 

unless the former client consents in writing. RPC

1.9(a). Therefore, if the prior and subsequent matters 

are indeed the same, the representation, absent written 

consent of the former client, is prohibited.

[Twenty-First Century Rail Corp. v. N.J. Transit Corp., 

210 N.J. 264, 275-76 (2012).]

In strictly interpreting the terms of this Rule, the Supreme Court also stated:

We recognize that a client's right to be represented by 

counsel of [his] choosing is an important one to be both 

cherished and protected. We also reiterate, however, 

that the right is not unfettered, but is one that can only 

be appropriately exercised in careful compliance with 

the [Rules of Professional Conduct] that govern 

attorneys and that serve to protect the legitimate 

interests of their former clients. In particular, the clear 

proscription included in RPC 1.9(a) against 

undertaking representation, in the same matter, of a 

client whose interests are materially adverse to a 

previously-represented client requires that the motion 

to disqualify be granted.

[Id. at 279 (emphasis added).]

1

 RPC 1.9(d) further provides that "[a] public entity cannot consent to a 

representation otherwise prohibited by this Rule."
4

A-0592-20

II.

The facts underlying Burroughs' past work with the State on the trial that 

resulted in defendant's convictions, and his subsequent attempt to serve as 

defendant's PCR attorney in a challenge to those convictions, are not in dispute. 

We address each stage of the litigation in turn.

A.

In March 2014, an Essex County grand jury charged defendant in a threecount indictment with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); 

second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and 

second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(a). State v. Ingram, No. A-0463-16 (App. Div. Apr. 12, 2019) (slip op. at 1, 

5), certif. denied, 240 N.J. 12 (2019).

Defendant was tried before a jury in a trial that took much of the month 

of June 2016 to complete. Sometime before the proceedings began on the 

morning of June 22, 2016, which was the day before the State rested its case in 

chief, the trial judge received a telephone call from Juror No. 1. The juror 

explained that the county prosecutor's office had executed a search warrant at 

her home earlier that morning in connection with a criminal investigation of her 
5

A-0592-20

adult son. When no one immediately answered the door at the juror's house, the 

officers "ma[d]e [a] forceful entry" of the residence. 

When the attorneys for both sides later arrived in court, the judge advised 

them of the call and stated that "[t]he police were kind enough to drop [the juror] 

off and she is now downstairs." After some discussion, the judge and the parties 

agreed they should question the juror.

The judge called Juror No. 1 to the courtroom. After asking the juror to 

confirm the nature of the search warrant that had been executed at her home, the 

judge inquired as to whether the fact that the State "is the person [sic] bringing 

[that] matter forward, would . . . in any way, interfere with your ability to be fair 

and impartial in this case." The juror replied, "[n]o." 

Roger Imhof, Esq., the assistant prosecutor for the State, then asked the 

juror if she would "be able to focus on the trial" as the result of what had 

happened that morning. The juror answered, "I honestly don't know." The juror 

also explained that the matter involving her son would "[p]robably" be 

"weighing on her mind . . . ." In response to questions posed by defendant's 

attorney, the juror stated that although the incident with her son would not 

"impact upon [her] ability to be fair and impartial in this case[,]" she "honestly 
6

A-0592-20

[did not] know" whether it would "impede [her] ability to concentrate on what's 

going on" during the trial.

The judge asked Juror No. 1 to leave the courtroom. At that point, Imhof 

expressed concern that the juror would be too distracted by her son's case to 

concentrate on the issues involved in defendant's trial. At the same time, he 

acknowledged that the juror stated she could be "fair and impartial to the State." 

As an alternative to excusing the juror for cause, Imhof suggested that the judge 

immediately designate Juror No. 1 as the alternate juror rather than waiting to 

make that determination at the end of the trial.

2

 That way, according to the 

prosecutor, the parties would not have to worry if the juror would be distracted 

since she would only serve on the jury during its deliberations if one of the 

remaining jurors needed to be excused. If that occurred, Imhof proposed that 

the court and parties voir dire the juror again to ensure she had paid attention to 

the testimony and remained impartial.

The judge suggested that she and the attorneys "do some legal research to 

see if we can make that understanding, as to whether she would be the alternate." 

2

 Although the record is not absolutely clear on this point, it appears there were 

thirteen jurors remaining on the trial panel at that point. 
7

A-0592-20

In response, Imhof told the judge that he could research the issue "and have 

Appellate[3] do some research for your Honor . . . ." 

Defendant's attorney agreed that Juror No. 1 should be retained, but she 

did not concur with Imhof's suggestion that the judge prematurely designate the 

juror as an alternate. After stating that she "still need[ed] some research[,]" the 

judge asked Imhof "if [he] could, you know, get [his] Appellate section to look 

at it" and she would ask her law clerk to do the same. When it became clear that 

defendant's attorney was not going to consent to Imhof's proposal, he stated that 

the judge should excuse Juror No. 1 from the case. However, the judge prevailed 

upon the parties to research the issue before making any final requests 

concerning the juror's status on the jury.

At that point, the judge brought Juror No. 1 back into the courtroom and 

asked her to let the court know if things became "too much" for her during the 

trial for her to remain as a fair and impartial juror. The juror agreed to do so.

Burroughs worked as an assistant prosecutor in the appellate unit of the 

Essex County Prosecutor's Office. As part of his duties, Burroughs regularly 

3

 By "Appellate," Imhof was referring to his office's appellate unit, in which 

Burroughs worked as an assistant prosecutor.
8

A-0592-20

provided research assistance and guidance to his trial team colleagues on issues 

arising during the course of the office's prosecutions.

Sometime during the lunch break, Imhof spoke to Burroughs about the 

issues involving Juror No. 1. At 1:50 p.m., after the trial had resumed for the 

afternoon, Burroughs sent an email to Imhof concerning his request for an 

opinion on the question presented by Juror No. 1's encounter with the 

prosecutor's office earlier that day. Although the email did not refer to the 

defendant's case by name,4it specifically mentioned Juror No. 1 and the 

equivocal responses she had given during the voir dire. In the email, Burroughs 

told Imhof:

Question: Does a trial court have the discretion to sua 

sponte designate a juror as an alternat[e] rather than use 

the random process procedure expressed in Rule 1:8-

2(d)(1).

Answer: No[.] [T]rial court does not have that 

discretion under Rule 1:8-2(d)(1), which provides "If 

more than such number are left on the jury at the 

conclusion of the court's charge, the clerk of the court 

in the jury's presence shall randomly draw such number 

of names as will reduce the jury to the number required 

to determine the issues."

As we discussed in your case, Juror 1 appears equivocal 

about whether she can focus on the trial. This apparent 

equivocation should be resolved and placed on the 

4

 The email was captioned "juror alternate selection."
9

A-0592-20

record through proper voir dire. If the juror continues 

to express equivocation, the court should excuse her 

from further service in this case.

[(Emphasis added).]

Burroughs' opinion was not acknowledged or addressed by the attorneys 

or the judge on June 22 and, therefore, it appears that Imhof did not review his 

colleague's email until after the trial ended for the day. In this regard, the judge 

reminded the attorneys to "look up the issue that we started with this morning"

after she excused the jurors at the conclusion of that afternoon's testimony.

Before the jury was summoned to the courtroom the next day, Imhof 

reported that "we did some research on the jury issue." After briefly recapping 

what had transpired the previous morning, Imhof provided the court with the 

substance of Burroughs' legal opinion, and stated:

I think we should again voir dire [Juror No. 1] 

. . . see how she's doing, . . . where her mind is. And 

again, Judge, at this point if she says that she's 

equivocal, she's unsure how she could stay focused, 

then I'd ask that she be removed Judge, and we go with 

the [twelve remaining jurors].

We're at the end of the trial. But I don't think we 

could take a chance and I think even if the defense 

wants her, I don't think it's something that [the] defense 

can waive. I think a reviewing court, Appellate Court, 

would say that the [trial] [c]ourt, on its own should have 

su[a] sponte removed the juror based on what 

happened.
10 A-0592-20

In response, defendant's attorney asserted that the judge had appropriately 

instructed the juror to let the court know if she felt she was having any 

difficulties maintaining her concentration. Because the juror had not done so, 

defense counsel argued there was no need to remove the juror from the panel.

The judge then had Juror No. 1 come to the courtroom. In response to two 

questions posed by the judge, the juror affirmed she would "continue to listen 

wholeheartedly to the . . . case" and would be able to "decide this case by being 

fair and impartial." Imhof and defendant's attorney did not ask any follow-up 

questions. The judge then called the remaining jurors into the courtroom and 

the trial continued.

At the conclusion of the trial, Juror No. 1 was designated as the jury's 

foreperson. After its deliberations, the jury convicted defendant of all three 

charges. Ingram, (slip op. at 1). After appropriate mergers, the judge sentenced 

defendant to an aggregate fifty-year term in prison, with an 85% parole 

ineligibility term pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Id.

at 5.

B.

Defendant filed a direct appeal challenging his convictions and sentence. 

Id. at 5-6. Burroughs did not participate on either side in this stage of the 
11 A-0592-20

proceedings, although the incident regarding Juror No. 1 that had been the 

subject of the advice he provided to the trial team was one of the issues 

defendant raised in this part of his case. 

In this regard, defendant argued for the first time on appeal that "the trial 

court erred by not giving curative instructions after two juror irregularities" 

occurred at trial, including the incident involving Juror No. 1. Id. at 13. He also 

asserted that his trial attorney provided him with ineffective assistance. Ibid.

We determined that both of these contentions lacked merit. Ibid. 

Addressing defendant's argument regarding the judge's handling of Juror No. 1, 

we stated:

During the trial, Juror [No. 1] informed the judge 

the Essex County Prosecutor's Office executed a search 

warrant at her . . . house in an unrelated case. She said 

this would not affect her ability to be impartial but 

added the search was a surprise to her, and she was 

unsure whether it would decrease her focus on the trial. 

After a discussion with counsel, the trial court did not 

dismiss Juror [No. 1] but instructed her to let the court 

know if her concentration was diminished.

[Id. at 14.]

In his direct appeal, defendant argued that the judge should have given an

additional curative instruction. Id. at 14-15. In rejecting this argument, we 

concluded that because "Juror [No. 1] was instructed to inform the court if she 
12 A-0592-20

felt she could not continue, and she felt she could continue to be impartial[,] 

[n]o further curative steps were necessary." Id. at 15.

We did not address the merits of defendant's argument that his trial 

attorney failed to provide him with effective assistance because defendant did 

"not offer a reason why his trial counsel's performance fell below an acceptable 

standard." Id. at 18. Thus, we were not able to "review [defendant's] claim" on 

this point at the time of his direct appeal. Ibid.

We rejected defendant's remaining contentions and affirmed his 

convictions and fifty-year aggregate sentence. However, we remanded the 

matter to the trial court to address a mistake made in the assessment of a 

monetary penalty. Id. at 19-20.

C.

We now turn to the next chapter in the parties' ongoing litigation. In 

November 2019, defendant filed a timely petition for PCR. By this time, 

Burroughs was no longer working as an assistant prosecutor in the Essex County 

Prosecutor's Office, and he was now doing criminal defense work. The OPD 

sometimes assigned Burroughs to represent indigent defendants in criminal 

matters.
13 A-0592-20

The OPD assigned Burroughs to represent defendant in connection with 

his PCR petition. Burroughs asserts he did not recall his involvement in the 

criminal trial that led to defendant's convictions at that time. He entered a notice 

of appearance as defendant's designated counsel on May 22, 2020. 

Two months later, on July 28, 2020, Burroughs filed a brief in support of 

defendant's petition with the trial court. He also emailed a copy of his brief to 

Imhof and another assistant prosecutor. Later that day, Imhof pulled his file on 

the case and found the opinion that Burroughs had prepared during defendant's 

trial on the issue involving Juror No. 1.

The next day, Imhof sent an email to Burroughs enclosing a copy of 

Burroughs' June 22, 2016 opinion. Imhof reminded Burroughs that he had 

worked on defendant's case while he was employed by the Essex County 

Prosecutor's Office and that he was not permitted to represent defendant in the 

PCR proceeding under RPC 1.9. 

Burroughs responded by email and advised Imhof that he did not believe 

he had a conflict because his involvement at the trial "was limited to [a] very 

narrow question of law that could apply to any case that [he] was asked about 

while at the prosecutor's office." Burroughs also asserted that his "recusal at 
14 A-0592-20

this point would deny [defendant] his Sixth Amendment right to choice of 

counsel."

The State then filed a motion to disqualify Burroughs as defendant's 

attorney and the matter was assigned to the same judge who had presided at 

defendant's murder trial. This judge was also responsible for addressing 

defendant's PCR petition. Burroughs opposed the State's motion.

Following oral argument, the judge rendered a short oral decision denying 

the State's motion to disqualify Burroughs pursuant to RPC 1.9. The judge 

recognized that she had asked Imhof to have the appellate unit in which 

Burroughs worked address the issue regarding Juror No. 1's participation on the 

jury. The judge also acknowledged that Burroughs provided advice to the trial 

team that was provided to the court on this issue. In addition, the judge stated 

that she based her decision not to designate Juror No. 1 as an alternate juror and 

to permit the juror to remain on the panel on the advice Burroughs conveyed 

through Imhof. 

Nevertheless, the judge determined that Burroughs' representation was 

"fleeting"5and his opinion was conveyed in an email that was "not captioned by 

5

 The judge also described Burroughs' participation in the murder trial as 

"temporal at best" and "rather de minimis."
15 A-0592-20

the case name, [did] not identify the defendant, [and did not] discuss[] any 

substantive facts related to the case." The judge further noted that Burroughs 

stated he did not recall providing the advice that his employer relied on in 

addressing the issue before the trial court. Therefore, the judge ruled that 

Burroughs should not be disqualified from representing defendant in the PCR 

proceeding.

As a further reason for denying the State's motion, the judge stated that 

"defense counsel has invested significant time and competence as PCR counsel. 

The [OPD] has already expended significant funds, and would be obliged to 

expend further unnecessary expenditures during a State budget crisis, if it is 

required to engage . . . a new attorney." The judge also expressed concern that 

the State waited until after Burroughs submitted his PCR brief to file the 

disqualification motion and stated that "this motion would disrupt the 

attorney/client relationship that has developed between [defendant] and PCR 

counsel."

On October 29, 2020, we granted the State's motion for leave to appeal 

the judge's September 28, 2020 order denying its motion to disqualify 

Burroughs.
16 A-0592-20

III.

On appeal, the State argues that under the clear provisions of RPC 1.9(a), 

Burroughs was prohibited from representing defendant in his attempt to overturn 

the convictions that Burroughs had assisted in obtaining against defendant on 

behalf of the State. We agree.

Our standard of review is well settled. "[A] determination of whether 

counsel should be disqualified is, as an issue of law, subject to de novo plenary 

appellate review." State v. Faulcon, 462 N.J. Super. 250, 254 (App. Div. 2020) 

(alteration in original) (quoting City of Atl. City v. Trupos, 201 N.J. 447, 463 

(2010)). "'Where . . . the trial judge had no factual disputes to resolve on 

credibility grounds and only legal conclusions to draw,' reviewing courts do not 

'defer to the trial judge's findings' or ultimate decision." State v. Hudson, 443 

N.J. Super. 276, 282 (App. Div. 2015) (quoting State v. Bruno, 323 N.J. Super. 

322, 331 (App. Div. 1999)). "The burden rests with the State to demonstrate a 

disqualifying conflict exists." Faulcon, 462 N.J. Super. 254 (quoting Hudson, 

443 N.J. Super. at 282).

Applying this standard, it is clear that Burroughs may not represent 

defendant in his attempt to overturn his convictions. Burroughs served as an 

assistant prosecutor at defendant's trial and, during the course of that 
17 A-0592-20

employment, provided legal advice to his client concerning the proper handling 

of a juror issue that threatened to disrupt the trial just as it was nearing its 

conclusion. Because Burroughs was able to guide Imhof, his colleague on the 

trial team, along the correct path by dissuading him from seeking to have the 

juror prematurely designated as an alternate, the judge permitted the juror to 

remain on the panel, thus averting a possible mistrial at the trial level of the 

proceedings or an additional appellate issue.

Burroughs now seeks to switch sides in the next stage of this same case 

by becoming defendant's lawyer as he seeks to overturn the convictions through 

a petition for PCR. Defendant's interests in this chapter of the proceedings are 

certainly "materially adverse to the interests of the" State, which is Burroughs' 

former client. RPC 1.9(a). The State has not consented to this representation 

as required by RPC 1.9(a) and, indeed, it may not "consent to a representation 

otherwise prohibited by [that] Rule." RPC 1.9(d).

Accordingly, RPC 1.9(a)'s "plain prohibition of subsequent representation 

in the same matter" clearly bars Burroughs from acting as defendant's attorney 

as he attempts to obtain PCR from his convictions. Twenty-First Century Rail 

Corp., 210 N.J. at 276. Therefore, the trial judge erred by denying the State's 

motion to disqualify Burroughs.
18 A-0592-20

On behalf of defendant, the OPD argues that Burroughs did not truly 

represent the State at the trial stage of this case because Burroughs only 

addressed one "generic" question in a "fleeting" manner and did so in a memo 

that did not identify defendant's case by name or docket number. This argument 

lacks merit.

The question regarding the continued participation of Juror No. 1 was not 

a "de minimis," "fleeting," or "generic" issue. It diverted the court's and the 

parties' attention for a good part of the morning on the next to last day of the 

State's presentation. The issue was only able to be resolved the next day after 

Imhof reached out to Burroughs to conduct the research needed to address the 

question presented. Further demonstrating the importance of the issue, the judge

asked that the prosecutor's appellate unit assist the court in evaluating Imhof's 

suggestion that she designate Juror No. 1 as an alternate.

The fact that Burroughs' memo did not identify defendant by name or his 

case by its docket number is of no moment. There is no dispute that Imhof 

discussed the case with Burroughs, who referenced that discussion and Juror No. 

1 in the memo. Therefore, both Imhof and Burroughs knew what case Burroughs 

was addressing in his opinion.
19 A-0592-20

Contrary to the judge's oral decision, RPC 1.9(a) also does not impose a 

"temporal" requirement on an attorney's representation of a client. It may have 

only taken Burroughs fifteen minutes to research and resolve the issue posed to 

him by Imhof. However, there is no question that based on his work on this 

portion of the case, Burroughs clearly acted as an assistant prosecutor involved 

in the State's prosecution of defendant.

We also disagree with defendant's contention that the issue Burroughs 

addressed "was of no consequence" and "was not raised on defendant's [direct] 

appeal." As discussed above, the issue regarding Juror No. 1 threatened to 

impede, if not derail, the trial as it entered its final days. Because other jurors 

had already been excused, there were only thirteen jurors remaining. Therefore, 

a careful analysis of whether yet another juror should be removed from the panel

was needed. Burroughs provided that evaluation and, as a result, the State, as 

Burroughs' client, was able to continue the trial and obtain convictions against 

defendant on all three counts of the indictment.

In addition, the incident involving Juror No. 1 was an issue during 

defendant's direct appeal. Defendant argued that the judge erred by failing to 

give additional curative instructions after she decided not to excuse the juror. 

Ingram, (slip op. at 13-15). Therefore, the question Burroughs addressed and 
20 A-0592-20

resolved for his client was certainly a consequential one for both defendant and 

the State.

The OPD also asserts on defendant's behalf that the State waived its ability 

to object to Burroughs' switch from the State's side to defendant's because it did 

not challenge Burroughs' participation until sixty-eight days after he filed 

defendant's PCR brief. We disagree.

When Burroughs filed his notice of appearance in May 2020, he did not 

remember that he had worked on this case while employed as an assistant 

prosecutor. Therefore, he did not seek the State's written consent to the 

representation as required by RPC 1.9(a). Twenty-First Century Rail Corp., 210 

N.J. at 276. Thus, we cannot fault Imhof, who also stated he did not immediately 

recall Burroughs' participation, for not addressing the conflict when Burroughs 

submitted his notice of appearance. After Burroughs filed his brief on behalf of 

defendant on July 28, 2020, Imhof found Burroughs' June 2016 memo and 

sought Burroughs' voluntary recusal the very next day. Under these 

circumstances, we are satisfied that the State's objection was timely filed.

Moreover, the "waiver" cases cited by defendant are clearly 

distinguishable from this matter. For example, in Alexander v. Primerica 

Holdings, Inc., the District Court held that a party waived its ability to move to 
21 A-0592-20

disqualify counsel because it waited over three years to make its motion, which 

it filed on the eve of trial. 822 F. Supp. 1099, 1115-16 (D.N.J. 1993). Similarly, 

in Commonwealth Ins. Co. v. Graphix Hot Line, Inc., 808 F. Supp. 1200, 1209 

(E.D.P.A. 1992), the party seeking the disqualification waited two years to file 

it and then did so just a few weeks before the trial. Here, the State filed the 

motion to disqualify Burroughs one day after Imhof confirmed that his former 

colleague had assisted him in addressing the issue regarding Juror No. 1 in the 

trial that resulted in the convictions that Burroughs now seeks to overturn.

We also reject the assertion that the State waited until after it received 

Burroughs' brief in order to obtain a tactical advantage in the PCR portion of 

this long-running litigation and to impose an undue hardship upon defendant. 

While the OPD will have to appoint a different attorney for defendant, the 

arguments raised by Burroughs will certainly be subject to that attorney's review 

and possible presentation in a new brief. Although there will be a delay in the 

disposition of defendant's petition, it will be a relatively short one because 

Burroughs demonstrated that an attorney, with a caseload of other matters, could 

review the entire trial file and prepare a brief within a span of only two months.6 

6

 The brief Burroughs prepared challenging defendant's convictions is not a part 

of the record on appeal.
22 A-0592-20

Moreover, defendant will not incur any financial hardship in this case. As an 

indigent OPD client, he will be assigned a new attorney at no cost or expense to 

him.7

Finally, Burroughs' disqualification will not deprive defendant of his 

"Sixth Amendment right to counsel[, which] encompasses the right to be 

represented by the counsel of his . . . choosing . . . ." Faulcon, 462 N.J. Super. 

at 254 (quoting Hudson, 443 N.J. Super. at 283). This is so because "[t]he right 

to choose counsel is circumscribed by the court's power to guard against 

conflicts of interest, and to vindicate the court's independent interest in ensuring 

that criminal trials are conducted within the ethical standards of the profession 

and that the legal proceedings appear fair to all who observe them." Ibid.

(citations and internal quotation marks omitted). 

"This squares with the principle that a defendant's Sixth Amendment right 

to effective assistance of counsel mandates counsel provide both adequate and 

conflict-free representation." Hudson, 443 N.J. Super. at 283-84 (citing United 

States v. Moscony, 927 F.2d 742, 748 (3d Cir. 1991)). Because Burroughs 

cannot provide this assistance to defendant in the face of the clear language of 

7

 We again note that RPC 1.9(d) prohibits the prosecutor from consenting "to a 

representation otherwise prohibited by" RPC 1.9(a). Moreover, no "waiver" of 

the conflict was permissible.
23 A-0592-20

RPC 1.9(a), he must be disqualified. Twenty-First Century Rail Corp., 210 N.J. 

at 279.

In sum, we reverse the trial judge's September 28, 2020 order and 

disqualify Burroughs from further representation of defendant in this matter. 

We remand to the Law Division for further proceedings consistent with this 

opinion.

Reversed and remanded. We do not retain jurisdiction.