A New Jersey appeals court has ruled that a lawyer who represents criminal defendants in Sussex County is disqualified from representing the sheriff in a civil suit against the county's freeholder board.

The appeals court affirmed a trial judge's ruling disqualifying attorney George Daggett from representing Sussex County Sheriff Michael Strada. The panel rejected Daggett's reasoning that the Supreme Court's elimination of the appearance of impropriety standard in 2003 should alter the application of R. 1:15, which sets limitations on the practices of attorneys.

The appearance of impropriety standard held that, even in the absence of actual conflict of interest, an attorney may be precluded from representing a particular client if the representation creates an appearance of impropriety.

Daggett filed a suit on behalf of Strada in April 2018, claiming that Freeholders George Graham, Jonathan Rose and Carl Lazzaro and County Treasurer Robert Maikis were improperly interfering with the day-to-day operation of his department, creating a hostile work environment and violating the Conscientious Employee Protection Act. The county defendants moved to disqualify Daggett, arguing that Rule 1:15-3(a) bars him from representing Strada while also handling criminal matters in the same county. Judge Robert Ballard in Somerset County Superior Court, where the case was moved to avoid a conflict in Sussex County, granted the motion to disqualify Daggett in August 2018. Daggett appealed.

Ballard disqualified Daggett based on R. 1:15-3(a), which says that an attorney who is a sheriff or county prosecutor, or an attorney who is in the employ or service of such an official, “shall not practice on behalf of any defendant in any criminal, quasi-criminal or penal matter, whether judicial or administrative in nature,” and “an attorney who is a sheriff of any county or in the sheriff's employ” shall not practice in any court in that county.

At the Appellate Division, Judges Joseph Yannotti and Michael Haas said the elimination of the “appearance of impropriety” standard in the court rules did not alter or repeal R. 1:15-3(a).

Yannotti and Haas noted that the commission that recommended the elimination of the Appearance of Impropriety rule to the state Supreme Court did so because it was vague and ambiguous, and because objective rules were seen as a better way to regulate attorney behavior.

Daggett claimed that his argument for reconsidering disqualification under R. 1:15-3(a) is dictated by the Supreme Court's 2010 decision in City of Atlantic City v. Trupos. In that case, the court said that a law firm that represented Atlantic City in its defense of tax appeals was not disqualified from representing property owners who challenged subsequent tax assessments.

But Yannotti and Haas said Daggett's reliance on Trupos was misplaced. “Rule 1:15-3(a) was not at issue in Trupos,” the panel said, adding that “there is nothing in Trupos which suggests the disqualifications provided by Rule 1:15- 3(a) must be reconsidered in light of the elimination of the 'appearance of impropriety' standard.”

Daggett said he would seek state Supreme Court review of the decision. “I think the Supreme Court should have the final say. Since we don't have the appearance of impropriety rule anymore, I think you have to go into the facts” of the case.

The lawyer for the freeholders and county treasurer, Richard Cushing of Gebhardt & Kiefer in Annandale, said the court's decision was “extremely well-reasoned and laid out the basis for our position quite well. We don't think the person that guards the prisoners ought to be represented by the same lawyer as the persons who are being guarded.”