In a unanimous opinion addressing the issue of third-party payment of legal fees, the Supreme Court recommended best practices to avoid ambiguity of informed consent and waiver when payment of legal fees is by anyone other than the client. The five-part best practices model was announced in the opinion of State v. Kearney released on July 27, 2026. The Court also referred the issue to the Criminal Practice Committee to review and develop a model form and consider whether additional steps should be required in certain circumstances.
“We recognize that 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,” said Supreme Court Justice Michael Noriega who authored the opinion. “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 to the case.”
Kearney involved a post-conviction relief application alleging ineffective assistance of counsel because a State witness paid the defendant’s legal fees. The State witness hired the defendant’s attorney and met with him three times and for the last time well before trial. Kearney alleged this created a conflict of interest, of which he was not informed. The Court declined to hold there was a per se conflict because a criminal defendant’s ability to retain private counsel is difficult if detained. Especially for members of the private bar “the assistant of family or friends may be the only means available to connect an attorney to a detained defendant.” While it may create a conflict, the Court said that to allow a per se rule excluding all such arrangements “would be both impractical and unfair.” Based on the facts of the case, the Court also held that there was no actual conflict of interest.
The court set forth best practices to address the risk of a conflict and divided loyalty and to protect both counsel and client, recommending the following:
1. A separate disclosure and consent document – separate from the retainer agreement – memorializing the identity of the payer and the nature of the payment arrangement.
2. Client acknowledgement and informed consent contained in a separate document to acknowledge having been informed of the identity of the payer and consenting to the arrangement. The acknowledgement should make clear that the attorney’s loyalty is owed solely to the defendant and the payer has no authority to direct representation or influence strategy.
3. An ongoing duty to update the client and re-execute this disclosure and consent document if there is any change in the identity, or status of the payer, such as the payer being designated as a witness for the State or otherwise becoming involved in the proceedings.
4. Maintaining the document in counsel’s file and producing it as needed, with appropriate safeguards for confidentiality.
5. To avoid confusion and administrative difficulties when multiple individuals wish to contribute to the defendant’s legal fees, the attorney should work with the defendant and their supporters to designate a single individual as the primary payer.
For a copy of the full opinion, click here.
Supreme Court Grants NJSBA Amicus in Matter Contesting Legal Standing in Probate Matters
The New Jersey State Bar Association was granted leave to file a brief and argue as amicus asking the court to consider whether prior, unprobated wills can eliminate a party’s standing to contest a final, probated will. The Association argues for broader standing to “harmonize the probate rules and prevent fraud.”
In re Estate of Carone involves a series of wills leading up to final wills in 2021 and 2022 that initially named – and then disinherited – the decedents’ grandsons as beneficiaries. Both the trial and appellate courts held that the execution of successive wills revoked two earlier wills and therefore the disinherited grandsons lacked standing to challenge the 2021 and 2022 wills.
“The NJSBA submits that, given the generous rule for standing in probate matters and the important policies involved, parties such as ones in the situation below, whoa re disinherited under successive, unprobated wills, should still have standing to contest the final, probated wills,” said the NJSBA in its amicus brief. “Standing in probate matters must be determined by, and measured from the final, probated will and not prior, unprobated wills.”
NJSBA members Nicholas W. Keller, Gerard G. Brew, Jill Lebowitz (past chair of NJSBA’s Real Property Trust and Estate Law Section), Christine Socha Czapek and William F. Delaney authored the brief. Oral argument has not yet been set .