dissenting.
The narrow issue in this case is whether a public defender’s prior representation of a State witness created a manifest necessity for the trial court to declare a mistrial, over the objection of defendant, the State, and the witness. The trial court determined that the prior representation created an impermissible appearance of impropriety and declared a mistrial. In a second trial, a jury convicted defendant of murder. The Appellate Division concluded that the prior representation created an appearance of impropriety and held that the mistrial was a manifest necessity. A majority of this Court agrees.
Because of the high priority accorded to a defendant to have his or her fate in a criminal case' determined by the jury first impaneled and sworn, and because neither unavoidable necessity nor the ends of public justice compelled the trial court sua sponte to declare a mistrial, I cannot join the Court’s erroneous conclusion that double jeopardy principles did not preclude a second trial. New Jersey is the only state that still clings to a vague appearance of impropriety ethics rule. Ironically, the majority has elevated the status of such a questionable rule, one that the Court’s own committee has recommended be abolished, to the point that it trumps the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. No case in this or any other jurisdiction has reached such a draconian result. Consequently, I must dissent.
I.
On February 7, 1996, Carl Watson, Wanda Colon, and Amedeo Delaeruz drove to an apartment building in Newark to purchase heroin. Colon entered the building, where she encountered Rahnzzan Johnson, Sharonda Posey, and a third individual, allegedly nicknamed “Tank.” Colon requested ten dollars of “dope” *445and Johnson handed her a bag. As the purchasers drove away, they discovered the bag was empty. Undeterred, they returned to the scene of the fraudulent transaction, although this time Watson accompanied Colon into the building. Once inside, Watson argued with Johnson and Posey, accusing them of selling Colon an empty bag. Watson eventually received a new bag, and Colon left the building. Watson and Johnson followed, still arguing. Colon then heard Johnson say, “Tank, shoot this motherfucker, shoot him.” Tank did, shooting Watson eleven times. Johnson pushed Colon towards the ear, threatening to shoot her. Both Colon and Delacruz were in shock from having seen their friend murdered; yet, they managed to drive to a police station to report the incident.
At the police station, Colon informed a detective that the shooter’s name was “Tank” or “Tink” and she agreed to look through two books of photos in an attempt to identify him. The search proved to be fruitless, although Colon did identify one photograph as the individual who sold her the drugs. That photograph was of an Omar Smalls. The detective knew that Smalls associated with defendant John Loyal, who went by the nickname “Tank,” and whom the detective had been investigating. The detective retrieved defendant’s file, and Colon immediately identified defendant as the shooter. Subsequently, the police learned that Smalls, at the time of the incident, was serving a prison sentence and thus could not have been the individual who sold Colon the drugs.
Defendant was charged with murder and possession of a handgun, and trial commenced on April 16,1997. Colon testified to the above version of events. Posey testified that while she and Johnson were at the scene during the drug transaction, defendant was not present, and thus did not shoot Watson. According to Posey, after Johnson and Watson existed the building a third individual shot Watson.
Posey’s testimony differed substantially from a statement she gave to the police a few weeks after the incident. Both she and *446Johnson signed type-written statements identifying defendant as the shooter. Confronted with recanting witnesses, the trial court held a hearing required by State v. Gross, 121 N.J. 1, 17, 577 A.2d 806 (1990), to determine the reliability of Johnson’s and Posey’s out-of-court, inconsistent statements.
At that hearing, Johnson testified that on the day in question only he and Posey were selling drugs out of the Newark apartment building. After Colon returned to the building with Watson, and they all left the building, a third individual appeared and shot Watson. Johnson identified the shooter as Rasheed Philson, “an individual that comes in the neighborhood robbing, sticking up individuals, drug dealers.” He originally identified Philson as the shooter, but he maintained that he signed the statement identifying defendant as the shooter after the police threatened to charge him with conspiracy. Posey provided comparable testimony, noting that the police became unhappy when she refused to identify defendant as the shooter. According to Posey, the detective “got really angry because I guess I wasn’t saying what he wanted to hear and he started threatening me with life in prison because I was on parole.... And he kept throwing up pictures and then every picture, the defendant face was in every picture.” Posey agreed to take a polygraph test, which the police told her she failed. Posey asserted that she then agreed to make the statement implicating defendant.
Detective Manuel Garcia and Investigator Kirk Schwindel, the officers who took the statements from Posey and Johnson, testified that both witnesses made and signed their statements voluntarily, that neither interrogator suggested that defendant was the shooter, and that the witnesses were not put under any duress. Schwindel noted that Posey originally identified someone else as the shooter, although he believed that it was a fictitious person. Schwindel testified that after Posey took the polygraph test she “broke down. She was crying. She said ah, you don’t realize what’s happening. I live out there. I’m gonna be killed.” At that *447point, according to Schwindel, Posey identified defendant as the shooter.
After weighing the relevant factors, the trial court determined that both witnesses’ out-of-court statements “were given in reliable circumstances” and could be admitted into evidence under N.J.R.E. 803a. However, before continuing the trial, the court ordered Posey to return to the stand. Apparently, the State discovered a presentence report establishing that defendant’s attorney, William Cucco, had represented Posey in 1995 in an unrelated criminal matter. The judge asked Posey whether this was true and Posey responded that while she did plead guilty and was sentenced in a criminal matter in 1995, she did not think Cucco was the public defender who represented her. Posey observed that she has a cousin with a similar name, Shamese Posey, who Cucco once represented, and that might be the source of the confusion. In fact, a few years earlier, Cucco mistakenly summoned Sharonda Posey from prison to interview her, thinking she was Shamese.
The court then questioned Cucco, who responded that he did not. recall representing Posey. Cucco noted that he “stumbled across this Miss Posey” during his representation of her cousin, but “I don’t believe I represented her.” Cucco also remarked that the Judgement of Conviction provided to him by the State concerning Posey, a two-sided document, was only photocopied on one side. So if information relating to his past representation was on the back, he “was not alerted to it.”
The State moved to disqualify Cucco based on a conflict of interest. The trial court observed that “the difficulty I have is that this is a State’s witness and if, in fact, the CCH’s, or Judgments of Conviction had been pulled, it probably wouldn’t have gotten this far.” The court assigned Posey a pool attorney, and instructed Cucco to consult with defendant on the issue of a potential conflict of interest. After conferring with Posey, the pool attorney informed the court that thfe case which was the subject of the presentencing report did in fact involve Posey, but *448Posey still believed that Cucco had not represented her. Posey also noted that she would waive any potential conflict of interest.
Defendant testified that he, too, was willing to waive any potential conflict of interest. The Prosecutor volunteered that “I don’t think its something that Mr. Loyal can waive.... The first thing that’s gonna come back if he gets convicted of this homicide on appeal is ineffective assistance of counsel. The first thing he was gonna say is there was a conflict of interest....” The State submitted that “the jury could reason ... that she’s changing her mind now ... [because of] the past representation of Mr. Cucco of that client. And the jury needs to know that information in order to effectually evaluate, especially in light of the Gross hearing and her recantation, and why she’s recanting at this time.”
The trial court reserved decision until after lunch so that the matter could be researched. After the recess, the State informed the court that it would withdraw its motion for a mistrial provided defendant supplied an express waiver and Cucco represented that he did not have any “confidential information regarding [Posey] ... that he could possibly use as fruitful ground for cross-examination.” In response, Cucco admitted that the presentence report established that he had previously represented Posey, however he repeated that he did not “recall anything about her---- I don’t have any background information on her.” Despite the fact that the prosecutor, defense attorney, and defendant informed the court of their desire to waive any potential conflict of interest based on alleged appearance of impropriety, the trial court declared a mistrial, citing State v. Needham, 298 N.J.Super. 100, 688 A.2d 1135 (Law Div.1996).
The trial court noted that 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.” The court observed that although Posey could not realistically be classified as the State’s chief witness, “she clearly is a key witness in that she indicates iñ a statement that the State is seeking to introduce that the defendant is the shooter.” Furthermore, *449“[t]here is an appearance [of impropriety] ... since this witness is now recanting, [and] this witness was once represented by Mr. Cucco. This defendant is currently represented by Mr. Cucco. It seems clear that this Appellate Division opinion does not give me the leeway to have anyone waive any possible conflict and have the trial proceed.”
After dismissing the jury, the trial court admonished the State for failing to uncover this potential violation of RPC 1.7 and RPC 1.9 earlier. The court noted:
[i]t is unfathomable to me that the State has an eyewitness, who defense attorney has been requesting Judgments of Convictions of since I recall the case being assigned to him, and it is only two weeks into trial that the State discovers that this recanting eyewitness was represented by defense counsel. I cannot understand how it happened. I cannot fathom how proper preparation by the State would allow it to happen ... two weeks into the trial.
Mr. Cucco argued that he had requested judgments of conviction for all of the State’s "witnesses, and only received from the State one page of what should have been a two-sided document concerning Posey, who apparently had two previous convictions. Cucco argued that he had established a rapport with defendant “over the last year and four months ... which the State is now in the position of being able to interfere with.” Furthermore, he believed that he made “substantial ... points ... on the cross-examination of Colon____[and now] the State’s gonna get another chance at Mr. Loyal with the advantage of ... having additional opportunity to prepare a case that was marked ... ready for trial many months ago.”
After the jury had been discharged, defense counsel moved to dismiss the indictment, arguing that'a second trial would place defendant in double jeopardy, in violation of the federal and New Jersey Constitutions. Defendant blamed the mistrial on the State’s dereliction in failing to provide both sides of Posey’s Judgment of Conviction. The State responded that it did, in fact, forward both sides of the document to Cucco, and insinuated that Cucco either misplaced the second page or deliberately lost it. The court, believing that an issue of fact existed concerning *450whether Cucco deliberately lost the document, called Cucco to the stand. Cucco testified that he only received one side of the Judgment of Conviction. At a second hearing, the court allowed the State assistant prosecutor who tried the case, Jerry Chambers, to testify with respect to whether he forwarded both sides of the document to defendant. Chambers testified that he remembered photocopying both sides of the document.
In an oral opinion, the court observed that when a mistrial results from good faith prosecutorial error and is required as a matter of necessity, the Double Jeopardy Clause does not prohibit a second trial. The court, citing State v. Laganella, 144 N.J.Super. 268, 365 A.2d 224 (App.Div.1976), framed the issue before it as whether the “prosecutor’s actions or inactions bespeak bad faith and inexcusable neglect or oppressive conduct.” The court concluded that the State’s failure to provide the second side of the Judgment of Conviction was not deliberate. Thus, the court denied the motion to dismiss the indictment based on double jeopardy. In the subsequent trial, a jury convicted defendant on all counts and the court sentenced defendant to life in prison with thirty years of parole ineligibility for the murder. The State did not call Posey as a witness in the second trial.
On appeal, in an unpublished opinion, the Appellate Division affirmed the conviction, finding that the appearance of impropriety arising from Cucco’s previous representation of Posey made the trial court’s sua sponte grant of a mistrial a “manifest necessity.” The appellate panel noted that under R.P.C. 1.7(c) a court should apply the “ordinary knowledgeable citizen” standard when determining whether a past representation poses substantial risk to the public or the client. The panel could not say “with certainty that such a risk did not exist in this case.” Instead, the panel observed that “[tjhere is the potential that Loyal’s attorney may have obtained client confidences during that prior representation that could be used to aid in cross-examining Posey.” The panel felt that the necessity for a mistrial increased because Posey was a recanting witness. “Of course,” noted the panel, “we do not *451suggest that the assigned public defender had done or would do anything unethical.”
The panel remarked that “neither party obtained an advantage as a result of the mistrial nor were there other alternatives available to the judge.” Therefore, the Appellate Division concluded “[t]he declaration of a mistrial in this case advances an important state policy and terminates a proceeding that would have produced results that potentially could have been overturned on appeal. Thus, the defendant’s interests are outweighed by the competing demand for public justice.”
II.
A.
Defendant argues that the trial court incorrectly determined that an appearance of impropriety existed under R.P.C. 1.7(c). Alternatively, defendant contends that even if an appearance of impropriety existed, it was not manifestly necessary to remove defense counsel and declare a mistrial, especially in light of the express waivers provided by defendant, the State, and Posey. The State asserts that defense counsel’s prior representation of a key witness, who was now recanting her testimony, mandated counsel’s disqualification and the declaration of a mistrial because of an unacceptable appearance of impropriety.
When an appellate court reviews a trial court’s determination of whether a mistrial was manifestly necessary, a reviewing court must give deference to the trial court’s factual findings. Arizona v. Washington, 434 U.S. 497, 515-16, 98 S.Ct. 824, 834-36, 54 L.Ed.2d 717, 734 (1978); State v. Farmer, 48 N.J. 145, 171, 224 A.2d 481 (1966), cert. denied, 386 U.S. 991, 87 S.Ct. 1305, 18 L.Ed.2d 335 (1967); State v. Modell, 260 N.J.Super. 227, 239-41, 615 A.2d 1264 (App.Div.1992), certif. denied, 133 N.J. 432, 627 A.2d 1138 (1993). Factual findings made by a trial court ordinarily should not be disturbed on appeal. State v. Locurto, 157 N.J. 463, 470-71, 724 A.2d 234 (1999). Deference, however, is not *452accorded a trial court’s determination with respect to the legal effect of those factual findings. Manalapan Realty v. Manalapan Twp. Committee, 140 N.J. 366, 378, 658 A.2d 1230 (1995); State v. Brown, 118 N.J. 595, 604, 573 A.2d 886 (1990). Although I accord deference to the trial court’s factual findings, I disagree with its legal conclusion that a manifest necessity existed that required a mistrial.
B.
It is axiomatic that a State may not put a defendant in jeopardy twice for the same offense. Benton v. Maryland, 395 U.S. 784, 795, 89 S.Ct. 2056, 2063, 23 L.Ed.2d 707 (1969). This fundamental right is protected by the federal Constitution, U.S. Const, amend. V, and the New Jersey Constitution, N.J. Const., Art. I, par. 11. The protections provided by the federal and State constitutions are “coextensive in principle and scope.” State v. Farmer, 48 N.J. 145, 168, 224 A.2d 481 (1966). The Double Jeopardy protections are not dependent on a completed trial; under both State and federal law jeopardy attaches to a defendant once a jury is empaneled and sworn. United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 1353, 51 L.Ed.2d 642 (1977); State v. Rechtschaffer, 70 N.J. 395, 404, 360 A.2d 362 (1976). A second prosecution after an uncompleted trial implicates double jeopardy concerns because “[i]t increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted.” Arizona, supra, 434 U.S. at 503-04, 98 S.Ct. at 829 (footnotes omitted). Thus, “as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial.” Id. at 505, 98 S.Ct. at 830.
The prohibition on retrying a defendant after a mistrial, however, is not absolute. “[A] defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end *453in just judgments.” Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). Courts may discharge a jury, over a defendant’s objection, and still retry a defendant “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.” United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824).
The “manifest necessity” standard has existed under the federal Constitution since at least 1824, ibid., and has long been recognized as guiding our courts in interpreting New Jersey’s double jeopardy prohibition under similar circumstances. Farmer, supra, 48 N.J. at 174-75, 224 A.2d 481; see also N.J.S.A. 2C:1-9d(3) (stating statutory pronouncement of manifest necessity rule). The “manifest necessity” standard cannot be applied mechanically, however, but must depend on the individual facts of the case at hand. Illinois v. Somerville, 410 U.S. 458, 462-63, 93 S.Ct. 1066, 1069-70, 35 L.Ed.2d 425 (1973); Rechtschaffer, supra, 70 N.J. at 405, 360 A.2d 362. Because a defendant’s right to be free from double jeopardy is fundamental, the State shoulders a “heavy” burden of demonstrating the “ ‘manifest necessity’ for any mistrial declared over the objection of the defendant.” Arizona, supra, 434 U.S. at 505, 98 S.Ct. at 830. For example, the inability of a jury to decide on a verdict is considered a “manifest necessity” for declaring a mistrial over the objection of a defendant. State v. Romeo, 43 N.J. 188, 195, 203 A.2d 23 (1964), cert. denied, 379 U.S. 970, 85 S.Ct. 668,13 L.Ed.2d 563 (1965). Conversely, the inability of a judge to complete a trial due to a death in the family does not constitute a manifest necessity for a mistrial, when alternatives are readily available. Love v. Morton, 112 F.3d 131, 137 (3d Cir.1997).
In the present case, the trial court declared a mistrial over the objection of defendant, the State, and the involved witness, based on an appearance of impropriety, allegedly prohibited by R.P.C. 1.7 and 1.9. As described above, the alleged appearance of impropriety concerned the fact that defendant’s counsel, in his role *454as public defender, represented a State witness two years earlier in an unrelated matter. The question becomes whether an appearance of impropriety actually existed, and if so, whether that appearance constitutes a manifest necessity for a trial court’s sita sponte declaration of a mistrial.
C.
Our appearance of impropriety rule is part of our Rules of Professional Conduct (RPC). It is contained in R.P.C. 1.7(c)(2) and provides:
(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.
The phrase “appearance of impropriety” was first used in a 1932 Formal Opinion issued by an American Bar Association (ABA) Committee interpreting the Canons of Professional Ethics. See ABA Comm, on Professional Ethics and Grievances, Formal Op. 77 (1932). The Committee determined that a part-time prosecutor could not defend a client in a civil action while prosecuting him on felony charges, even with the client’s consent, because “[a]n attorney should not only avoid all impropriety but should likewise avoid the appearance of impropriety.” See ibid.; Bruce A. Green, Conflicts of Interest in Legal Representation: Should the Appearance of Impropriety Rule be Eliminated in New Jersey — Or Revived Everywhere Else?, 28 Seton Hall L.Rev., 315, 315 (1997). In 1969, “the ABA replaced the Canons with the Model Code of Professional Responsibility” (Model Code or Code) and incorporated “the moral obligation to ‘avoid the appearance of impropriety’ ” in Disciplinary Rule (DR) 9-101, in Canon 9, and in Ethical Considerations 9-3 and 9-6. Green, supra, 28 Seton Hall L.Rev. at 316. As explained by one commentator, “The Model Code includes Canons, Ethical Considerations and Disciplinary Rules. The Canons state the standards expected of lawyers; the Ethical Considerations state the objectives toward which every lawyer *455should aspire; and the Disciplinary Rules state the minimum acceptable level of lawyer conduct.” Elisabeth E. Boyan, Reconsidering (Again) Conflicts of Interest Arising From Lawyers Representing Lawyers in New Jersey, 9 Geo. J. Legal Ethics 1377, 1381 (1996).
Every state, except California, eventually “adopted a version of the Model Code recognizing this obligation.” Green, supra, 28 Seton Hall L.Rev. at 317. In 1983, subsequent to the report of the Commission on Evaluation of Professional Standards (Kutak Commission) appointed by the ABA, the ABA replaced the Model Code with the Model Rules of Professional Conduct (Model Rules) and specifically eliminated the appearance of impropriety standard. Id. at 318.
In 1982, a special committee of the New Jersey Supreme Court (known as the Debevoise Committee, after its chairman, now-United States District Judge Dickinson R. Debevoise) recommended that New Jersey adopt the ABA Model Rules and abandon the appearance of impropriety standard. The Committee Report stated:
New Jersey ... has continued ... to construe the rules as prohibiting any representation that the public might perceive as inappropriate because it somehow could create the appearance of something unseemly. In that construction New Jersey has stood almost alone. The Code of Professional Responsibility was drafted for the avowed purpose of expressing in black letter rules precisely what conduct or what omission would subject a lawyer to discipline, much as criminal statutes are intended to give fair warning in advance as to what specific conduct may result in penal sanctions.
... The present New Jersey approach unduly limits lawyers’ representation of clients where no actual conflict exists and it unduly limits clients’ selection of lawyers where no actual conflict exists. It imposes upon attorneys a disciplinary rule that is vague and undefined. The rule’s contours are defined in retrospect on a case-by-case method, which is not a satisfactory procedure when dealing with rules of conduct. The proposed Model Rules carefully define the situations in which representation is proper and provide safeguards to ensure against improper representation.
[New Jersey Supreme Court Committee on the Model Rules of Professional Conduct, Report (1983).]
*456The Court adopted most of the Committee’s other recommendations, but chose to keep the appearance of impropriety standard, now codified at R.P.C. 1.7(c).
In adopting R.P.C. 1.7(c), New Jersey rejected the approach adopted by the majority of states. “As of the fall of 1995, thirty-eight states and the District of Columbia had adopted all, or significant portions, of the Model Rules,” including those provisions abandoning the appearance of impropriety standard. Green, supra, 28 Seton Hall L.Rev. at 318, 318 n.20 (quoting Carol M. Rice, The Superior Defense in Legal Ethics: Sending the Wrong Message to Young Lawyers, 32 Wake Forest L.Rev. 887, 938 (1997)), The Model Rule is as follows:
RULE 1.7 CONFLICT OF INTEREST: GENERAL RULE
(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.
At the request of a group of eight New Jersey law firms, this Court considered during the present term whether to eliminate the appearance of impropriety standard contained in R.P.C. 1.7(c)(2). See Notice to the Bar, 159 N.J.L.J. 843 (2000). The Supreme Court’s Professional Responsibility Rules Committee (PRRC) recommended to the Court the elimination of the appearance of impropriety standard contained in R.P.C. 1.7(c)(2). Ibid. The PRRC concluded that:
There is no support for continuation of the “appearance of impropriety” standard. Efforts at its application are confounded by the vagueness and imprecision of the Rule itself, yet its specter creates undesirable adversarial tactics, *457which result in limitations on the free selection of counsel. Lacking any real and clear parameters, it is surplusage, which should be eliminated from our Disciplinary Rules.
Raymond R. Trombadore, Esquire, a former member of the Debevoise Committee, a former chair of our Disciplinary Review Board, and a member of the ABA Standing Committee on Professional Discipline, in recommending the elimination of the rule, argued:
We have now had sufficient experience with enforcement of the Rules of Professional Conduct____the RPC s do work. They are comprehensive and they cover the situations intended to be covered by the old standards____ In almost every instance, disqualification or discipline based on ‘appearance of impropriety1 involves conduct violative of other Rules of Professional Conduct---- We no longer need the added comfort of a redundant rule which serves only to generate mischief____
Other attorneys argued that the rule is impossible to apply because of its indefiniteness, unpredictability, and that if it were a penal statute, it would be held to be unconstitutionally vague.
Professors Stephen Gillers of New York University School of Law and Bruce Green of Fordham University School of Law argued that the appearance of impropriety standard should be retained and applied only to government lawyers, criminal justice, and other situations that specifically implicate the public interest. Professor Geoffrey Hazard of the University of Pennsylvania Law School, and former Director of the American Law Institute, argued that the appearance standard is superfluous and used in New Jersey only “as an embellishment or exclamation point in decisions that rest on other grounds.”
Ultimately, the Court decided not to determine whether to abolish R.P.C. 1.7(c)(2) until after the ABA’s Commission on Evaluation of the Rules of Professional Conduct, known as Ethics 2000 Commission, has submitted its report. In the face of such emphatic condemnation of RPC 1.7(c)(2), even by the Court’s own key committee, there are at least three substantial reasons why I do not believe that a violation of R.P.C. 1.7(c)(2) can satisfy the Perez manifest necessity requirement.
*458First, New Jersey is one of an overwhelming minority of states that prohibit attorney-client relationships which, while not violating a specific conflict of interest rule, create an “appearance of impropriety.” Green, supra, 28 Seton Hall L.Rev. at 318-19. One respected commentator from New Jersey has concluded that we stand alone. Cynthia M. Jacob, A Polemic Against R.P.C. 1.7(c)(2): The “Appearance of Impropriety” Rule, New Jersey Lawyer, June 1996. Although Jacob has asserted that New Jersey stands alone, in Berry v. Saline Mem. Hosp., 322 Ark. 182, 907 S.W.2d 736, 740 (1995), the Supreme Court of Arkansas was asked in a pretrial application to reconsider its position on the “appearance of impropriety” standard because “we are only one of three states retaining that standard.” What is clear, however, is that no state has held that an appearance of impropriety that did not also involve an actual conflict can satisfy the Perez manifest necessity standard.
Our rule concerning an appearance of impropriety is an ethics rule. In In re Garber, 95 N.J. 597, 610, 472 A.2d 566 (1984), an attorney disciplinary case, we determined that an attorney’s multiple and simultaneous representation of a recanting murder witness and the murder suspect, in unrelated actions, created an appearance of impropriety. This Court has never suggested, however, that if an attorney engages in conduct in a criminal case that creates an appearance of impropriety, the trial court can unilaterally discontinue a criminal trial to vindicate that ethical rule, without regard for the Double Jeopardy Clause. Yet, the majority opinion today has reached the strained and unconstitutional conclusion that breach of such a rule can satisfy the Perez manifest necessity standard. Such a ruling disregards the ratio decidendi of the Court’s decision of only two years ago, which held that breach of our Rules of Professional Conduct, patterned after the American Bar Association’s Model Rules, does not create a civil cause of action. Baxt v. Liloia, 155 N.J. 190, 197-204, 714 A.2d 271 (1998). Our ethics rules “ ‘intended to make clear that the purpose of the Model Rules was to regulate lawyer conduct through the disciplinary process, not to serve as a basis for civil *459liability.’” Id. at 198, 714 A.2d 271 (quoting Model Rules of Professional Conduct, Scope (1992)). Even twenty years earlier in our now famous case of In re Wilson, 81 N.J. 451, 456, 409 A.2d 1153 (1979), the Court observed that the primary purpose of our rules of ethics “is to preserve the confidence of the public in the integrity and trustworthiness of lawyers in general.” Ibid. If a breach of our appearance of impropriety rule cannot create civil liability, a fortiori such a violation may not satisfy the Perez manifest necessity standard. Further, nothing that we stated recently in State v. Clark, 162 N.J. 201, 744 A.2d 109 (2000), in which the Court exercised its authority to amend a practice and procedure rule, supports the majority’s decision.
I am of the view that unless the violation of an ethics rule also violates a constitutionally-protected right of the State or a criminal defendant, such as the Fifth, Sixth or Fourteenth Amendment, an example of which is Farmer, supra, 48 N.J. at 167-177, 224 A.2d 481, such a violation may not satisfy the Perez manifest necessity standard required to justify granting a mistrial sua sponte once jeopardy has attached. Where jeopardy has attached, an appearance of impropriety violation should be addressed exclusively within the disciplinary system because that standard “was intended as a moral or prudential principle, not a legally enforceable norm.” Green, supra, 28 Seton Hall L.Rev. at 357. That result is impelled, at least in part, by the fact that decision makers have no basis upon which to decide what the public would view as improper. “The appearance of impropriety test does not appear, to be based upon any empirical studies of public sentiment.” Boyan, supra, 9 Geo. J. Legal Ethics at 1385. I agree with Boyan that judges themselves “are critical of the appearance of impropriety standard because it calls upon them to ‘divine’ the public’s interpretation of attorney actions.” Ibid. Even if judges are able to determine public sentiment, the public may be wrong in certain cases. “What lay persons sometimes perceive as impropriety is frequently in the highest tradition of the bar: for example, representing unpopular clients, defending the guilty, and being courteous to opposing counsel during the course of a trial.” Victor *460H. Kramer, The Appearance of Impropriety Under Canon 9: A Study of the Federal Judicial Process Applied to Lawyers, 65 Minn. L.Rev. 243, 265 (1981). Yet, despite the vagueness, indefiniteness, and unpredictability of R.P.C. 1.7(c)(2), the Court today has elevated its status above well-established constitutional law.
Second, none of the cases decided under the appearance of impropriety rule raised any double jeopardy concerns. They all dealt with ethics problems, mostly in the context of pre-trial applications to remove an attorney from the case based on a conflict of interest. I can find no case law in this or any other jurisdiction, and the Court’s majority opinion has cited none, that holds that an appearance of impropriety falls within a trial court’s outer discretionary limit for granting mistrials based on the Perez manifest necessity standard. I am persuaded that a violation of our rule governing the appearance of impropriety is an insufficient basis to conclude “that the ends of public justice would not be served by a continuation of the proceedings.” United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971).
Reliance by the trial court and the majority on State v. Needham, State v. Nappo, State v. Laganella, and State v. Farmer is misplaced. First, Needham is a Law Division opinion. Second, the facts of that case make its holding inapplicable to this case. In Needham, a defendant barricaded himself in a home while threatening police with a gun. The State’s “chief witness” was Officer Warner, the arresting officer who endured defendant’s threats. 298 N.J.Super. at 103, 688 A.2d 1135. Defendant’s attorney had represented Officer Warner seven years earlier in a criminal jury trial in which Officer Warner was acquitted, as well as in an unrelated internal affairs investigation that took place after defendant had been arrested in this case. Before the Needham trial began, the trial court disqualified the defendant’s attorney based on an appearance of impropriety. Thus, Needham dealt with a pretrial motion to disqualify an attorney in an attempt to vindicate a criminal defendant’s Sixth Amendment right to unconflicted representation. All of the interested parties waived *461any potential conflict. No Fifth Amendment Double Jeopardy Clause issues were implicated.
State v. Nappo, 185 N.J.Super. 600, 450 A.2d 604 (1982), another Law Division decision, involved the dismissal of a municipal court complaint after some evidence had been presented, because the State refused to complete the trial within a reasonable time. Id. at 602-03, 450 A.2d 604. The dismissal was at the request of the defendant. A second prosecution was prohibited because of prosecutorial overreaching, such as a pattern of deliberate dereliction. A dismissal of a criminal complaint or indictment after some evidence has been presented is the functional equivalent to a mistrial. State v. Lynch, 79 N.J. 327, 341, 399 A.2d 629 (1979). A mistrial that is granted based on a defendant’s application that does not involve prosecutorial overreaching or bad faith does not preclude a retrial under double jeopardy principles. Oregon v. Kennedy, 456 U.S. 667, 672-73, 102 S.Ct. 2083, 2087-88, 72 L.Ed.2d 416 (1982); Farmer; supra, 48 N.J. at 171, 224 A.2d 481.
In State v. Laganella, 144 N.J.Super. 268, 365 A.2d 224 (App. Div.1976), the trial court dismissed the indictment after the State had rested its ease, on motion by the defendant, based on discovery violations. Id. at 277, 365 A.2d 224. The Appellate Division reversed and reinstated the indictment. Id. at 283, 365 A.2d 224. It found that double jeopardy principles did not preclude a retrial because the dismissal of the indictment was based on defendant’s application in a ease in which the State had not acted in bad faith. Id. at 288-89, 365 A.2d 224.
In State v. Farmer, supra, the trial court declared a mistrial sua sponte over defendant’s objection in a murder case because the prosecutor mistakenly had failed to comply with a discovery order. The materials not disclosed in discovery were so important that defendant moved to prevent the prosecutor from using any evidence that related to the unrevealed discovery materials. The Court found that the mistrial was necessary to avoid depriving defendant of his right to a fair trial and effective assistance of counsel. Farmer, supra, 48 N.J. at 167, 224 A.2d 481. The Court *462observed that had the trial been completed and defendant was convicted, the conviction would have been reversed. Id. at 175-77, 224 A.2d 481. Thus, the Court found that protecting defendant’s Sixth and Fourteenth Amendment rights satisfied the Perez manifest necessity standard.
Similarly, the Court’s reliance on other cases is misplaced. Wheat v. United States, supra, involved a pretrial application by the defendant to allow him to be represented by his co-defendant’s attorney. The trial court denied the application, perceiving the potential for a real conflict, as opposed to an appearance of impropriety, that could deprive the defendant of his Sixth Amendment right to unconflicted representation. The denial of the defendant’s application was affirmed. Wheat, supra, 486 U.S. at 164, 108 S.Ct. at 1700, 100 L.Ed.2d 140. Wheat does not involve the Double Jeopardy Clause and the present ease does not involve the Sixth Amendment.
In Arizona v. Washington, supra, the Court found a mistrial declared over the defendant’s objection did not preclude a retrial because defense counsel’s “improper opening statement unquestionably tend[ed] to frustrate the public interest in having a just judgment reached by an impartial tribunal.” 434 U.S. at 512, 98 S.Ct. at 834, 54 L.Ed.2d at 732. Thus, the overriding interest in the evenhanded administration of justice and the requirement of avoiding juror bias required by the Sixth and Fourteenth Amendments satisfied the manifest necessity standard.
In State v. Modell, supra, the trial court declared a mistrial when a witness for the State, who had been subpoenaed by the defendant, did not appear with records to give testimony for the defense. The trial court declared a mistrial sua sponte to protect defendant’s Sixth and Fourteenth Amendment rights to a fair trial. Modell, supra, 260 N.J.Super. at 244-45, 615 A.2d 1264.
Unlike those cases, in this case defendant opposed the mid-trial mistrial, and it was not declared based on an actual conflict, prosecutorial overreaching or bad faith. Nor did the trial court declare a mistrial for the purpose of protecting defendant’s consti*463tutional rights to a fair trial. The alleged appearance of impropriety was, at most, an ethical violation that would not have justified even the filing of an ethics complaint.
The majority cites four out-of-state cases to support its holding that an appearance of impropriety can create a manifest necessity for a mistrial. Those cases support my position rather than the Court’s holding. In each case, the trial court expressly found an actual conflict of interest. United States v. Simonetti, 998 P.2d 39, 40 (1st Cir.1993); People v. McNally, 107 CalApp.3d 387, 165 Cal.Rptr. 715, 716-17 (1980); In re Hoang, 245 Kan. 560, 781 P.2d 731, 732 (1989), cert. denied, 494 U.S. 1070, 110 S.Ct. 1791, 108 L.Ed.2d 792 (1990); Commonwealth v. Diehl, 532 Pa. 214, 615 A.2d 690, 691 (1992). The appellate court in each case found a mistrial necessary to protect the defendant’s Sixth and Fourteenth Amendment rights. In Simonetti, McNally, and Hoang, the courts declared mistrials after finding that the conflicts of interest involved would preclude the defendant from receiving effective assistance of counsel. Simonetti, supra, 998 F.2d at 41-42; McNally, supra, 165 Cal.Rptr. at 718; Hoang, supra, 781 P.2d at 732. Similarly, in Diehl, after the court discovered that the prosecutor previously had represented the defendant in a matter related to the defendant’s criminal case, the court declared a mistrial, observing that it was necessary to ensure that the defendant “would receive a trial by a fair and impartial jury which would return a verdict based solely on evidence adduced at trial.” Supra, 615 A.2d at 692.
Conversely, in the present case, the trial court expressly found that no conflict of interest existed, and that there was no reason to believe that defense counsel’s continued representation would be less than vigorous.
Third, even if it can be said that the appearance of impropriety rule was violated, and I maintain that it was not while giving deference to the trial court, defendant and the prosecutor could waive a potential conflict under the circumstances. Given that a defendant can waive constitutional rights, such as the right to an *464attorney in a criminal case, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); State v. Crisafi, 128 N.J. 499, 509, 608 A.2d 317 (1992), there is no reason why a defendant and the prosecutor could not waive an alleged appearance of impropriety. See State v. Purnell, 126 N.J. 518, 535-36, 601 A.2d 175 (1992) (holding a defendant could waive any conflict based on his attorney’s previous representation of a State’s witness in an unrelated matter). Here, defendant, the prosecutor, and Posey waived any violation of our appearance of impropriety rule. Those waivers provided the trial court with a viable option to a declaration of a mistrial sua sponte.
III.
In State v. Rechtschaffer, supra, this Court noted that “[u]n-questionably a trial court has a discretionary range within which it may properly operate to grant a mistrial whether on its own motion or otherwise. But there are limits.” 70 N.J. at 406, 360 A.2d 362 (internal citations omitted). The right to be free from double jeopardy must be balanced against the State’s duty to ensure that a fair determination of guilt or innocence is made. Wade, supra, 336 U.S. at 689, 69 S.Ct. at 837, 93 L.Ed. 974; Rechtschaffer, supra, 70 N.J. at 405, 360 A.2d 362. I am persuaded that an appearance of impropriety does not interfere with the “public’s interest in fair trials designed to end in just judgments.” Wade, supra, 336 U.S. at 689, 69 S.Ct. at 837. Although the public’s perception of fairness was an important State interest in this ease, it cannot outweigh defendant’s fundamental right to be free from double jeopardy. An appearance of impropriety, without more, does not interfere with the public’s right to a fair determination of guilt or innocence, because the proceedings are, by definition, fair, since no actual conflict of interest exists. If there was a violation of our appearance of impropriety rule, the New Jersey attorney disciplinary system is the place to resolve that issue, rather than a declaration of a mistrial over the objection of the defendant and the prosecutor. We have developed the *465finest disciplinary system in the country to handle such ethics matters. Baxt, supra, 155 N.J. at 204 n. 3, 714 A.2d 271; In re Konopka, 126 N.J. 225, 236, 596 A.2d 733 (1991).
The Appellate Division’s conclusion in the present case that defendant was not prejudiced by the disqualification of his attorney was incorrect. First, “the lack of demonstrable ... prejudice [does not] preclude the defendant’s invocation of the double jeopardy bar in the absence of some important countervailing interest of proper judicial administration.” Illinois v. Somerville, supra, 410 U.S. at 471, 93 S.Ct. at 1073. Second, there was substantial prejudice to defendant. At the time of the first trial, defendant had been in jail since his arrest some fourteen months earlier. After two weeks of trial, and after defendant’s attorney cross-examined Colon, a State key witness, the court’s order allowed the State to start afresh. Because of mistrial, defendant remained in prison while a new public defender began the time-consuming process of reviewing discovery, interviewing witnesses, and plotting trial strategy. I am convinced that the second trial increased “the financial and emotional burden on the accused, prolonged] the period in which he is stigmatized by an unresolved accusation of wrongdoing, and ... enhance[d] the risk that an innocent defendant may be convicted.” Arizona, supra 434 U.S. at 503-04, 98 S.Ct. at 829, 54 L.Ed.2d 717. In other words, defendant undeniably suffered some of the very injustices that the Double Jeopardy Clause diligently guards against. Given the obvious prejudicial impact the mistrial had on defendant, it is difficult to comprehend how the need to uphold this State’s much-maligned “appearance of impropriety” rule outweighs defendant’s fundamental rights protected by the Double Jeopardy Clause. See Cynthia M. Jacob, A Polemic Against R.P.C. 1.7(c)(2): The “Appearance of Impropriety” Rule, New Jersey Lawyer, June 1996.
The Appellate Division also expressed its concern that the appearance of impropriety might allow defendant to claim ineffective assistance of counsel on appeal. It is clear, however, that any ineffective assistance claim would have been unsuccessful. In *466State v. Purnell, supra, we found that a defendant did not receive ineffective assistance of counsel when defense counsel’s law firm previously represented a State’s witness in an unrelated matter and defendant expressly consented to continued representation. 126 N.J. at 535-36, 601 A.2d 175. It is confounding that this Court could so easily dispense with Purnell’s ineffective assistance of counsel claim based on his consent, the fact that the witness in that case and Purnell were unrelated, and the lack of evidence that Purnell’s counsel’s representation was not “vigorous,” and yet in this case, under similar facts, find that the trial court’s grant of a mistrial was a “manifest necessity.”
I find the case of Love v. Morton compelling. There, the Third Circuit, on federal habeas grounds, ruled that a trial court’s sua sponte grant of a mistrial did not rise to the level of a manifest necessity. 112 F.3d 131, 137 (3d Cir.1997). In Love, the trial court declared a mistrial after a personal family matter precluded the judge from continuing. On federal habeas relief, the District Court of New Jersey found that a second trial was improper, and the Third Circuit affirmed. The Circuit Court stated that:
[a]s a matter of law, declaring a mistrial in this ease was not manifestly necessary when the derision to declare a mistrial ml non could have been postponed to the next morning. The delay would have given both the prosecutor and defense counsel, as well as the court, adequate time to consider alternative solutions to the sudden emergency____ When it comes to decisions squarely implicating the serious consequences of the Double Jeopardy Clause, the necessity for collected and composed contemplation assumes a fortiori proportions.
[Ibid.]
In this case, the trial court declared a mistrial after utilizing a short lunch recess to consider the State’s motion. After lunch, the State withdrew its motion, but the court did not take time to reflect on this significant new development. The State, when it withdrew its mistrial application, provided a means for reducing the significance of Cucco’s prior representation of Posey: an express waiver from defendant, representations from defense counsel that he had no confidential information or recollection of Posey, and representations from Posey that she did not recall Cucco’s representation of her. The trial court apparently believed *467that consent was immaterial. Although R.P.C. 1.7(c)(1) does instruct that “in certain cases” consent may not overcome an appearance of impropriety, that statement is limited to whether the attorney may still face ethical charges. Clearly, State v. Purnell, supra, which is controlling in the area of criminal procedure, held that such a waiver is permitted. In this case, the representations of Cuceo and Posey, when coupled with the State’s and defendant’s express waivers, provided the trial court with a viable alternative to a mistrial, even if an appearance of impropriety existed. In addition, the trial court also could have considered whether the substitution of a new attorney under Rule l:ll-2(a)(2) without the declaration of a mistrial would have been appropriate. Although I have the highest regard for the trial judge’s judicial abilities, I am satisfied that the declaration of a mistrial was fatal to any further prosecution.
IV.
For all of the foregoing reasons, I respectfully dissent from the Court’s judgment finding that the second trial was not barred by the Double Jeopardy Clause of the Fifth Amendment as well as the comparable provision in our State Constitution. I would vacate the convictions and dismiss the indictment.
For affirmance — Chief Justice PORITZ and Justices O’HERN, STEIN, LONG, VERNIERO AND LaVECCHIA — 6.
For vacate and dismissal — Justice COLEMAN — 1.