The censure of an attorney by the New Jersey Supreme Court on Oct. 8, 2020, for a concurrent conflict of interest, in violation of RPC 1.7(a)(2), emphasizes that attorneys may occasionally violate the most fundamental principles of the Rules of Professional Conduct. In In re Fusco, the respondent engaged in a concurrent conflict of interest by accepting a retainer to represent an imprisoned defendant in seeking to reinstate his appeal from a conviction, after the appeal had been dismissed for lack of prosecution, and to simultaneously represent the attorney who had originally represented him on the appeal. According to the report and recommendation of the Disciplinary Review Board, posted with the Supreme Court order under attorney discipline opinions on the judiciary website, the respondent was retained to seek reinstatement of the appeal and to represent the attorney originally retained to handle the appeal in connection with a possible malpractice or ethics complaint. The attorney who retained respondent paid him by personal credit card using funds with which he was originally retained. The criminal defendant's mother sought a return of the retainer after yet another attorney was retained to prosecute the appeal. The respondent admitted that he never advised the family that he had been retained by the original attorney or of the dual representation.

Despite a disciplinary history of three prior infractions, the respondent received a censure, over the dissent of two DRB members who voted for a year suspension. The disciplinary history was an aggravating factor that increased the discipline from a reprimand ordinarily imposed for such a concurrent conflict of interest. However, the DRB also found mitigating factors affecting the appropriate discipline. The respondent's "actual representation" of the prior counsel was "short-lived" because of the retention of another attorney, and "respondent readily admitted his misconduct in th[e] matter and returned the entire $15,000 retainer to" the family of the criminal defendant.