dissenting.
Whether Dolores. Mann’s affront to our ethic rules was a conflict, a potential conflict, or an appearance of impropriety may be subject to dispute; what is not open to question is that she should have been disqualified from continuing to represent defendant, Porfirio Jimenez, as he fights for his life in this capital murder case.
On June 8, 2001, Jimenez was charged with the kidnapping and murder of Walter Contreras, and Dolores Mann became his lawyer. Thereafter, simultaneous with her representation of Jimenez, Mann became counsel for Raymond Hughes who was also a suspect in the Contreras killing. Hughes had been charged with terroristic threats arising out of the investigation of the murder case and on July 18, 2001, with Mann at his side, entered a plea to harassment.
Hughes had been tied to the murder case through a sweater that the police thought was worn by the killer. He submitted to a polygraph examination that did not exonerate him. Thereafter, he *495threatened a witness that he believed had given the police information about his connection to the homicide. That was the source of the terroristic threats charge.
Those threats were legally admissible evidence of Hughes’s consciousness of guilt of the murder. State v. Rechtschaffer, 70 N.J. 395, 413, 360 A.2d 362 (1976) (stating that defendant’s statement that he would kill person who informed against him was admissible as statement against interest); State v. West, 145 N.J.Super. 226, 232-33, 367 A.2d 453 (App.Div.1976) (holding rule applicable to witness), certif. denied, 73 N.J. 67, 372 A.2d 332 (1977). Thus, when Mann represented Hughes at the plea and allowed him to place on the record a benign explanation for the threats, her actions directly contravened the interests of Jimenez.
The State recognized the problem of dual representation in which Mann had become embroiled and moved to disqualify her. To extricate herself from the situation, Mann then took the position that she would not use a third-party guilt defense involving Hughes in her representation of Jimenez. That did not eliminate the conflict but only highlighted it.
The majority appears to accept the notion that Mann was free to forswear use of third-party guilt because the defense is not a viable one. I agree that it is doubtful that the terroristic threats would have been admissible at the trial of Jimenez without further evidence linking Hughes to the murder. However, at the incipient stage of the case at which Mann jettisoned third-party guilt, she had no way to predict whether industrious investigation would uncover such a link. By forswearing possible defenses at such an early stage, no matter how weak they might have appeared, for reasons external to the merits and related to her representation of Hughes, Mann was in a position of conflict. As a confidante and representative of both defendants, she could not be faithful to either. The interdiction of that kind of simultaneous conflicting representation is hornbook law, reaffirmed by us as recently as last month in State ex rel S.G., 175 N.J. 132, 138-40, 814 A.2d 612 (2003) (citing RPC 1.7). It may be, as the majority suggests, that *496at this point, the defense can say with assurance that third-party guilt cannot be advanced. That simply does not validate Mann’s prior conduct.
At the very least, this case involves an appearance of impropriety. See RPC 1.7(c) (setting forth appearance of impropriety rule). Although debate is raging over the continued vitality of that concept in other contexts, it is a critical factor in a capital case, where public confidence in the fairness of the proceedings leading to the verdict is a paramount consideration. State v. Loyal, 164 N.J. 418, 430, 753 A.2d 1073 (2000) (observing that when appearance of impropriety is found in criminal matter, disqualification of attorney is regularly required); State v. Rivera, 232 N.J.Super. 165, 177-78, 556 A.2d 1227 (App.Div.) (recognizing that attorneys may be disqualified under conflict of interest rules where defendant’s right to counsel of choice is outweighed by need to preserve public confidence in judicial system), certif. denied, 117 N.J. 169, 564 A.2d 885 (1989).
Mann’s actions will shadow the trial of this case. If there is a conviction, we will see this issue again on direct appeal and post-conviction relief, as will the federal court. Standing alone, that is a matter that Mann should have taken into account in her ill-considered dual representation of Jimenez and Hughes. Failing that, our courts should have intervened at the early stages of the case.
Justices COLEMAN and LáVECCHIA join in this dissent.
For affirming and remanding — Chief Justice PORITZ and Justices VERNIERO, ZAZZALI and ALBIN — 4. For reversing — Justices COLEMAN LONG and LaVECCHIA — 3.