The New Jersey Supreme Court ruled Monday that a third party’s payment of a criminal defendant’s legal fees does not automatically create a conflict of interest, but recommended new safeguards for attorneys accepting payments from someone who could become a witness.
In a unanimous decision written by Justice Michael Noriega, the court upheld the murder conviction of Dana Kearney, whose legal fees were paid by Alicia Boone, his girlfriend and a prosecution witness.
Kearney was convicted of first-degree murder and other charges in connection with the 2013 stabbing death of Christopher Sharp, Boone’s cousin. Kearney argued that his attorney, Neil Duffy III, had a conflict because Boone paid his fees and later testified for the state.
The court found no evidence that the payment compromised Duffy’s representation.
“There is no evidence that Duffy’s representation of defendant was materially limited by Boone’s payment, nor is there any evidence of divided loyalty or impaired advocacy,” Noriega wrote.
The decision offers a minor hint that New Jersey’s courts aren’t likely to ban donor-funded legal defense for politically active clients any more than they ban it for criminal defendants generally, since payment alone doesn’t prove a conflict.
But given the added risk when a payer has political, business, or witness-adjacent interests in the outcome, expect pressure toward the same kind of remedy the court endorsed here: written disclosure of who’s paying, confirmation that the attorney’s loyalty runs solely to the client, and reporting obligations that make the arrangement visible rather than hidden.
Duffy aggressively cross-examined Boone, challenged her credibility and emphasized conflicting accounts she had given police about what Kearney said after the stabbing. Boone also testified that she and her family knew Kearney had not killed Sharp.
“Any suggestion that Duffy’s strategy was compromised, or that he failed to pursue alternative lines of questioning due to a conflict, is speculative and unsupported by the record,” Noriega said.
The court rejected Kearney’s request for an evidentiary hearing, finding that his allegations amounted to unsupported assertions.
But Noriega acknowledged that payments by relatives, friends and others can present ethical risks, especially when the person paying the bill becomes a witness.
“Third-party payment of legal fees is a common and often necessary feature of criminal defense practice, particularly for detained defendants who may not have direct access to private counsel,” Noriega wrote. “However, as this case demonstrates, such arrangements present unique risks of conflict and divided loyalty, especially when the payer is, or may become, a witness in the case.”
The court recommended that lawyers prepare a separate document identifying the person paying the fees and explaining the arrangement. The defendant should sign the document and acknowledge that the attorney’s loyalty belongs solely to the defendant. Lawyers should update the disclosure if the payer’s status changes, retain it in their files, and designate one primary payer when multiple people contribute.
Failure to follow those recommendations, however, would not by itself establish a conflict or entitle a defendant to a new trial.
For extreme political junkies: Duffy is the son of the late Neil G. Duffy (R-Newark), who was elected to the New Jersey State Assembly in 1951 (one of the Democrats he defeated was New York Giants Hall of Fame outfielder Monte Irvin) and as Essex County Sheriff in 1953, 1956 and 1959. He later served as a Superior Court Judge for eighteen years and as general counsel to the North Jersey District Water Commission.
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June 5, 2020 -
