STATE OF NEW JERSEY VS. G.L.L. (Phsl(262, 100%, 13%), ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4901-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
G.L.L.,
Defendant-Appellant.
_________________________
Argued January 23, 2020 – Decided July 2, 2020
Before Judges Nugent and Suter.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Essex County,
Docket No. P #18004292.
Marco A. Laracca argued the cause for appellant
Sebastian M. Bio (Bio & Laracca, PC, attorneys; Marco
A. Laracca, on the briefs).
Matthew E. Hanley, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Theodore N. Stephens II, Acting Essex
County Prosecutor, attorney; Matthew E. Hanley, of
counsel and on the brief).
Matthew S. Adams argued the cause for amicus curiae
The Association of Criminal Defense Lawyers of New
Jersey (Fox Rothschild, LLP, attorneys; Matthew S.
Adams and Marissa Koblitz Kingman, on the brief).
PER CURIAM
On leave granted, defendant G.L.L. appeals from an order that denied his
motion to quash a subpoena issued to his attorney (Defense Counsel) and
compelled Defense Counsel to appear before a grand jury, produce documents,
and answer many of sixty-nine questions the State proposed to ask him. Because
the trial court erred in ruling the State had established the crime-fraud exception
to the attorney-client privilege to some of the questions, and because the trial
court did not adequately consider whether the other questions were relevant or
whether there was a feasible alternative to obtain the information, we reverse
and remand this matter for the trial court's further consideration.
I.
A.
Preliminarily, we note some oversights in the parties' briefs. Facts are
asserted that appear to be based on documents in Defense Counsel's appendix
but contain no citation to the record. See R. 2:6-2(a)(5), R. 2:6-2(b), and R. 2:6-
4(a). Nor is it apparent from the briefs exactly what documents were presented
to the trial court. Nonetheless, during oral argument, the parties agreed we
A-4901-18T4
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should consider the documents in Defense Counsel's appellate appendix as
having been presented to the trial court. We thus recount the relevant facts from
these documents.
Defendant has been charged with crimes in three complaint-warrants. The
first alleges that on May 5, 2018, defendant injured the victim, his children's
mother, in her residence, "by placing his hands around her neck and strangl[ing]
her causing bruising on the neck," thus committing third-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(13). The second alleges, among other things, that
on May 9, 2018—four days after assaulting the victim—defendant entered the
victim's residence and killed her, thereby committing crimes that included first-
degree murder, N.J.S.A. 2C:11-3(a)(1). The third alleges defendant resisted
arrest, N.J.S.A. 2C:29-2(b).
The complaint-warrant alleging assault was not issued until May 9, 2018,
four days after the offense occurred, and defendant was not arrested until May
11, 2018. On May 9, Defense Counsel sent correspondence to the Newark Police
Department Special Victims Unit, informed them his office had been retained to
represent defendant with regard to a matter which he understood was being
investigated by the Newark Police Department, and instructed the Special
Victims Unit that defendant was not to be questioned in his absence. The record
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does not include the time Defense Counsel sent the letter. A credit card receipt
printed at 9:02 a.m. and defendant's phone location data obtained by the State
corroborate defendant's retention of Defense Counsel on the morning of May 9.
The victim was murdered later that day. An affidavit of probable cause
includes the following facts. The victim went to work in Newark on May 9,
2018. She left at 12:15 p.m. to go home and walk her dog. She was wearing a
distinctive ring when she left. Due back at 1:15 p.m., she never returned. Text
message evidence shows the victim was safe when she arrived at her home. Her
last outgoing phone carrier activity was approximately 12:40 p.m. She was
never heard from again.
Records related to defendant's cellular phone show that he drove to the
area of the victim's place of employment. When she left, he followed her to her
home. Defendant's cellular phone was then tracked from a central parking lot
approaching the victim's home at approximately 12:40 p.m. The phone signals
remain near or in the victim's home until they track through a courtyard to a
central parking lot. Surveillance video of the parking lot picks up a man
resembling defendant, moving consistently with the tracking of defendant's
phone, carrying a body wrapped in a rug and setting it down. The man,
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identified as defendant in the probable cause affidavit, walks back toward the
victim's home.
Shortly thereafter, the victim's van is seen on the video. The van circles
the lot and waits for a passerby to walk from the courtyard through the lot. The
van then backs onto the sidewalk and the same man loads the body into the van
through its sliding door. When the van is later recovered, a substance presumed
to be blood is found in the van in the area of the body's head.
The van leaves the parking lot between 1:40 and 2:00 p.m. It is later seen
parking on a street in Irvington at 4:30 p.m. Defendant exits and walks to a
garage he rents. Law enforcement officers later obtained a warrant and searched
the garage. They seized a bag containing mail addressed to defendant, live .40
"Blazer" ammunition, a significant quantity of heroin, and the ring the victim
was wearing when she left work.
Officers arrested defendant two days later, on May 11, 2018. They saw
him driving a Ford. When he spotted them, he attempted to flee. Before being
apprehended, he smashed his cellular phone. Telephone records revealed that
he called his brother at approximately the time he was fleeing from police.
Telephone records also show that after defendant called his brother, his
brother performed Google searches, including a search for "chemicals to
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disintegrate animals." Defendant's brother also opened an article subtitled "How
Long Does it Take to Dissolve a Human Body?" Defendant's brother then turned
off his phone and disappeared in his Jeep.
According to the State's brief, the following phone calls were placed from
Defense Counsel's firm to defendant's cellular phone, or from defendant's
cellular phone to Defense Counsel's firm, during the afternoon of the homicide:
1:56 p.m., a one-second phone call from Defense Counsel's law firm; 1:58 p.m.,
an eleven-second call to Defense Counsel's law firm; 2:10 p.m., an eighty-three
second call from Defense Counsel's law firm; 6:30 p.m., a fifteen-second call to
Defense Counsel's law firm. Approximately an hour after this last call, a
municipal court judge issued a warrant for defendant for the assault charge. The
next day, May 10, defendant called Defense Counsel's law firm at 8:36 a.m.
(eighty-six seconds) and 9:21 a.m. (eighteen seconds). Police arrested defendant
on May 11.
On June 3, 2018, police found the victim's remains in garbage bags behind
an abandoned house in Irvington. Chemicals had been used to hasten her body's
decomposition.
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B.
When defendant was taken into custody on May 11, 2018, he was arrested
for the May 5 aggravated assault, not for the May 9 homicide. Defense Counsel
entered an appearance for the aggravated assault charge. Defendant's detention
hearing was adjourned. On the rescheduled date, defendant was arrested and
charged with murder and other offenses.
After arresting defendant, prosecutors asked Defense Counsel if he would
agree to be interviewed concerning the timing and circumstances of defendant's
retention of his law firm. Defense counsel declined, asserting, among other
reasons, the attorney-client privilege. The next day, the Essex County
Prosecutor's Office subpoenaed Defense Counsel to appear before the grand
jury. The prosecutor served Defense Counsel with two subpoenas: a Subpoena
Duces Tecum and a Subpoena Ad Testificandum. The Subpoena Duces Tecum
required Defense Counsel to produce the following documents:
1. Any and all retainer agreements between
[Defense Counsel] and [defendant].
2. Any and all retainer agreements between
[Defense Counsel] and [defendant's brother].[1]
1
Defendant's brother had retained the firm on an unrelated weapons offense
before defendant was charged with murder, but the firm declined to represent
him after defendant was charged with murder.
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3. Any records of payments from, or on behalf of
[defendant] to [Defense Counsel].
4. Any records of payments from, or on behalf of
[defendant's brother] to [Defense Counsel].
Defense Counsel moved to quash the subpoena. During oral argument,
Defense Counsel emphasized the prosecutor had given no explanation why it
wanted the documents or how they related to the case. He argued, "there is no
rational basis to provide a retainer agreement and payments in a homicide case
that I can think of."
The assistant prosecutor responded:
The issue here is that there were meetings between
[Defense Counsel] and his client prior to the murder
occurring. And there are questions that . . . I believe
are not privileged that the State needs and the grand
jury needs answers to. And on a case by case basis
when those questions are asked if [Defense Counsel]
invokes privilege, we'll come back and litigate those
questions.
Concerning the subpoenaed records, the assistant prosecutor stated:
As to the billing records and the retainer
agreement, those are being sought in this case. Again,
counsel is placing on the State the onus of explaining
why when the case law says quite the contrary that as a
general matter retainer agreements and billing records
are not privileged unless the person who has been
subpoenaed for those records demonstrates a
significant reason why they should not be -- or why
. . . they should be privileged in this specific case. And
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there's no argument about that here. By way of a
friendly proffer I will indicate that one significant use
of them would be in helping guide the questioning
before the grand jury into what is privileged and what
isn't because there's a question about -- and I -- there's
reason to believe that -- well, I don't even want to get
in to too much about what there's reason to believe
because I also don't want to prejudice the testimony that
may come at a later time. The bottom line is one of the
ways in which the State can correctly respect, which it
does, the attorney/client relationship is to know what
attorney/client relationships existed and when. The
burden is on the defense or on the responding party in
this situation to indicate why in this specific instance it
should be privileged because generally speaking and as
set forth more fully in the brief it's not. That being the
billing records and the retainer agreements.
Based on case law holding retainer agreements and billing records are not
protected by the attorney-client privilege, and without addressing whether the
assistant prosecutor was required to make a threshold relevancy proffer, the
court ordered Defense Counsel to turn over the records. The court further
ordered Defense Counsel to appear before the grand jury and, when he
considered it appropriate, invoke the attorney-client privilege. The court would
then address the specific questions the prosecutor posed to Defense Counsel
before the grand jury.
The court retained jurisdiction to make a final determination as to whether
the attorney-client privilege applied to any question posed to Defense Counsel
A-4901-18T4
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during the grand jury proceeding. The court denied Defense Counsel's motion
for reconsideration. This court denied Defense Counsel's motion for leave to
appeal.
Defense Counsel appeared before an Essex County grand jury and asserted
the attorney-client privilege in response to sixty-nine questions. Thereafter, the
State filed a motion to compel Defense Counsel to reappear before the grand
jury and answer the questions. Defense Counsel argued in opposition that by
issuing the subpoena the State placed him in a position of a conflict of interest
and compelled him to withdraw his representation, thereby depriving defendant
of counsel of his choice. The court rejected the argument, stating: "Well, I'll tell
you what, let's get past this because I've read [the] papers and I believe that there
is certainly a basis to go question by question based upon the current court
exceptions."
Before undertaking a question-by-question review, the court cited the
attorney-client privilege and its exceptions. The court explained that it was
required to determine,
if the State has produced evidence that is sufficient to
make the prima facie showing that a crime or a fraud
was committed in connection with the attorney/client
relationship. Specifically, in this case the State argues
that [it] has demonstrated prior to any charges being
filed that there were in-person meetings and telephonic
A-4901-18T4
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communications between counsel and the defendant
. . . that appear on their face to be related to an ongoing
criminal activity and not to the lawful defense of the
pending case.
The court added that the timing of certain telephone calls and of the crime were,
in the court's estimation, "somewhat critical." Following those prefatory
remarks, the court undertook a question by question analysis.
The court filed an order that stated the court had found "the crime-fraud
exception removes the attorney-client privilege for questions regarding events
that took place between May 9, 2018, at 1:40 P.M., through the evening of May
11, 2018, when [d]efendant . . . was arrested." The order then set forth each
question and the court's disposition. We reproduce that part of the order:
1. When did you first encounter [defendant]?
The answer to this question is not protected
by attorney client privilege and therefore
[Defense Counsel] shall answer this
question.
2. Did [defendant] come to your office on May 9th,
2018?
The answer to this question is not protected
by attorney client privilege and therefore
[Defense Counsel] shall answer this
question.
A-4901-18T4
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3. When a client comes into your office, whoever it
may be, [defendant] or otherwise, do you have standard
client intake process that's utilized by your firm?
The answer to this question is not protected
by attorney client privilege and therefore
[Defense Counsel] shall answer this
question.
4. Were any forms executed with regard to
[defendant] when he came to your office on May 9th,
2018?
The answer to this question is not protected
by attorney client privilege and therefore
[Defense Counsel] shall answer this
question.
5. On May 9th, 2018, when . . . [defendant] that is,
came to your office, what case, if any, were you
consulted about?
The answer to this question is protected by
attorney client privilege and therefore
[Defense Counsel] need not answer this
question.
6. Who else was present during your meeting with
[defendant] on May 9th, 2018?
The answer to this question is not protected
by attorney client privilege and therefore
[Defense Counsel] shall answer this
question.
7. Were any notes taken during your -- during your
meeting with [defendant] on May 9th, 2018?
A-4901-18T4
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The answer to this question is not protected
by attorney client privilege and therefore
[Defense Counsel] shall answer this
question.
8. Are you aware that [the victim] -- let me -- strike
that. When did you first hear the name [of the victim]?
The objection was withdrawn so [Defense
Counsel] shall answer the question.
9. When did you first learn that [the victim] was
deceased?
The objection was withdrawn so [Defense
Counsel] shall answer the question.
10. How did you learn of [the victim's] death?
The objection was withdrawn, so [Defense
Counsel] shall answer the question.
11. Were you surprised when you learned of her
death?
This question is not relevant and therefore
[Defense Counsel] does not have to answer
this question.
12. Did you contact anyone on behalf of [defendant]
at any time?
The objection was withdrawn, so [Defense
Counsel] shall answer the question.
13. To whom did you transmit that letter?
A-4901-18T4
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The objection was withdrawn, so [Defense
Counsel] shall answer the question.
14. When did you send that letter?
The objection was withdrawn, so [Defense
Counsel] shall answer the question.
15. The date on the top of this letter is May 9, 2018,
is that the date you transmitted that letter?
The objection has been withdrawn, so
[Defense Counsel] shall answer the
question.
16. What time did you transmit that letter by fax?
The objection was withdrawn, so [Defense
Counsel] shall answer the question.
17. When did you first encounter . . . the brother of
[defendant]?
The objection was withdrawn, so [Defense
Counsel] shall answer the question.
18. On what occasion (i.e. dates) did you
communicate with [defendant], either telephonically, or
in person or otherwise?
The answer to this question is not protected
by attorney client privilege and therefore
[Defense Counsel] shall answer this
question.
19. Who else was present during any meeting or
communications with [defendant's brother]?
A-4901-18T4
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The answer to this question is not protected
by attorney client privilege and therefore
[Defense Counsel] shall answer this
question.
20. Did you take any notes during any of - - [those
meetings]?
The answer to this question is not protected
by attorney client privilege and therefore
[Defense Counsel] shall answer the
question.
21. Have you ever represented [defendant] in any
matter?
The objection was withdrawn, so [Defense
Counsel] shall answer the question.
22. And in relation to representation of [defendant]
when and in what matter or matters did you represent
[defendant]?
The objection was withdrawn, so [Defense
Counsel] shall answer the question.
23. When and in what matter or matters have you
represented [defendant's brother]?
The objection was withdrawn, so [Defense
Counsel] shall answer the question.
24. What money have you - you and/or your firm . . .
received on behalf of [defendant]?
The answer to this question is not protected
by attorney client privilege and therefore
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[Defense Counsel] shall answer this
question.
25. What monies have been received by you or your
firm on behalf of [defendant's brother]?
The objection was withdrawn, so [Defense
Counsel] shall answer the question.
26. There's no signature on the credit card receipt?
[Defense Counsel] does not have to answer
this question. However, the question "why
was the receipt not signed," shall be
answered by [Defense Counsel].
27. This credit swipe based on the review of the
document in front of you, Page 3 of SGJ-2, indicates
this transaction occurred May 9th, 2018 at 9:02:02 a.m.
Is that correct?
[Defense Counsel] [does] not have to
answer this question because other sources
to obtain the information are available to
the State.
28. Is this the entirety of the funds paid to you and/or
your law firm on behalf of [defendant]?
The answer to this question is not protected
by attorney client privilege and therefore
[Defense Counsel] shall answer this
question.
29. Is that document the extent of the documentation
that exists with regard to your retention or contracts for
payment of [defendant]?
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The answer to this question is not protected
by attorney client privilege and therefore
[Defense Counsel] shall answer this
question.
30. Does there exist a retainer agreement or contract
of any type related to your retention to represent
[defendant]?
The objection was withdrawn, so [Defense
Counsel] shall answer the question.
31. What documentation exists setting forth the
payments owing and/or scope of your retention or your
representation as it related to [defendant]?
The objection was withdrawn, so [Defense
Counsel] shall answer the question.
32. Drawing your attention to May 9th, 2018. Did
[defendant] appear at your offices [at] approximately,
8:20 a.m.?
The answer to this question is not protected
by attorney client privilege and therefore
[Defense Counsel] shall answer this
question.
33. Did he remain at your office until approximately,
9:13 a.m.?
The answer to this question is not protected
by attorney client privilege and therefore
[Defense Counsel] shall answer this
question.
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34. During -- during a meeting -- during your
meeting with [defendant] on May -- on May 9th, 2018,
did you -- did you contact anyone during that meeting?
[Defense Counsel] does not have to answer
this question because it is protected as
attorney work product.
35. Did [defendant] contact anyone during that
meeting?
[Defense Counsel] does not have to answer
this question because it is protected as
attorney work product.
36. Did [the victim's] name come up during that
meeting?
The answer to this question falls under the
protection of the attorney-client privilege
and therefore [Defense Counsel] does not
have to answer the question.
37. At any point did the identity or fact of another
participant or another member of the incident for which
he was seeking your representation come up? Any
other people involved in the incident you were being
consulted about?
The answer to this question falls under the
protection of the attorney-client privilege
and therefore [Defense Counsel] does not
have to answer the question.
38. Did the -- during your meeting on May 9th with
[defendant], was there any discussion of the importance
of the cooperation of a complaining witness in a
domestic violence case to a prosecution?
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The answer to this question falls under the
protection of the attorney-client privilege
and therefore [Defense Counsel] does not
have to answer the question
39. Did the importance of [the victim] . . . as a
potential witness in any case against [defendant] get
discussed during that meeting?
The answer to this question falls under the
protection of the attorney-client privilege
and therefore [Defense Counsel] does not
have to answer the question.
40. During your meeting . . . with [defendant] on May
9th, 2018, was [there] a discussion of a possible
resolution of a case the way -- the way a case could
resolve, whether by trial, by plea, or by a dismissal?
The answer to this question falls under the
protection of the attorney-client privilege
and therefore [Defense Counsel] does not
have to answer the question.
41. Was the prospect of the dismissal of any possible
charges discussed during the meeting with [defendant]
on that day?
The answer to this question falls under the
protection of the attorney-client privilege
and therefore [Defense Counsel] does not
have to answer the question.
42. During the meeting with [defendant] on May 9th
was there any discussion of the effect of any potential
charges for domestic violence affecting the child
custody status of the children he shared with [the
victim]?
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The answer to this question falls under the
protection of the attorney-client privilege
and therefore [Defense Counsel] does not
have to answer the question.
43. During the meeting was there any discussion of
the prospect of a conviction affecting his child custody
status with the children he shares with [the victim]?
The answer to this question falls under the
protection of the attorney-client privilege
and therefore [Defense Counsel] does not
have to answer the question.
44. How was [defendant] dressed during your
meeting with him on May 9th, 2018?
The answer to this question is not protected
by attorney client privilege and therefore
[Defense Counsel] shall answer this
question.
45. What was [defendant]'s demeanor during your
meeting on May 9th, 2018?
The answer to this question is very
subjective and therefore [Defense Counsel]
does not have to answer the question.
46. What observations of [defendant]'s emotional
state did you make during your meeting on May 9th,
2018?
The answer to this question is very
subjective and therefore [Defense Counsel]
does not have to answer the question.
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47. After [defendant] left your office on May 9th,
2018, were you at all concerned for the safety of [the
victim]?
This question is not relevant and therefore
[Defense Counsel] does not have to answer
this question.
48. On May 9th, 2018, were you aware that [the
victim] was a complaining witness in the case against
[defendant]?
The answer to this question falls under the
protection of the attorney-client privilege
and therefore [Defense Counsel] does not
have to answer the question.
49. At what point, to your best ability to estimate
time and date, did you learn that [the victim] was the
complaining witness in a case against [defendant]?
The objection was withdrawn, so [Defense
Counsel] shall answer the question.
50. Did you or someone at your office speak to
[defendant] on May 8th, 2018, being the day before the
meeting in your office at approximately, 2:59 p.m. for
approximately 118 seconds?
The answer to this question is not protected
by attorney client privilege and therefore
[Defense Counsel] shall answer this
question.
51. Following your meeting on May 9th, 2018 did
you or someone at from your office attempt to call
[defendant] at approximately 1:56 p.m.?
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The answer to this question is not protected
by attorney client privilege and therefore
[Defense Counsel] shall answer this
question.
52. At 1:58 p.m. and 29 seconds on May 9th, 2018,
did you or someone in your office receive a call back
from [defendant]?
The answer to this question is not protected
by attorney client privilege and therefore
[Defense Counsel] shall answer this
question.
53. At 2:10 p.m. and 20 seconds on May 9th, 2018,
or approximately at that time did you or someone in
your office call [defendant], again, and speak to him
for, approximately 83 seconds?
The answer to this question is not protected
by attorney client privilege and therefore
[Defense Counsel] shall answer this
question.
54. Are you aware that that series of phone calls
occurred immediately following [defendant] leaving
[the victim's] apartment complex in her minivan?
[Defense Counsel] shall answer this
question due to the Crime-Fraud
Exception.
55. Are you aware that - - at the same time [after
12:40 p.m.] while [defendant] was operating her
minivan, [the victim's] body was in the back of that
minivan while speaking to you and/or your law firm?
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[Defense Counsel] shall answer this
question within the time for which the
Crime-Fraud Exception applies.
56. What was [defendant]'s demeanor during any of
these phone calls I just listed?
[Defense Counsel] shall answer this
question within the time for which the
Crime-Fraud Exception applies.
57. What were your observations based on his voice
of his emotional state during any of the phone calls that
I just listed?
The answer to this question is not protected
by attorney client privilege and therefore
[Defense Counsel] shall answer this
question.
58. At the time of any of these phone calls did
[defendant] sound like he was in an automobile?
[Defense Counsel] shall answer this
question within the time for which the
Crime-Fraud Exception applies.
59. During any of the conversations I just listed - -
phone calls I just listed, did he sound like he was
outside?
[Defense Counsel] shall answer this
question within the time for which the
Crime-Fraud Exception applies.
60. During any of the conversations I just listed - -
phone calls I just listed, did he sound like he was inside
of a building?
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[Defense Counsel] shall answer this
question within the time for which the
Crime-Fraud Exception applies.
61. May 9th, 2018, between noon and 1 p.m. when
[the victim] was last seen alive, and June 3rd, were you
aware that there was an ongoing felony of - - an ongoing
indictable offense of the desecration of human remains
of [the victim] and a conspiracy to desecrate the human
remains of [the victim]?
[Defense Counsel] shall answer this
question within the time for which the
Crime-Fraud Exception applies.
62. Did you or someone at your firm receive a phone
call from [defendant] at approximately 6:30 p.m. and
50 seconds on May 9th, 2018?
The answer to this question is not protected
by attorney client privilege and therefore
[Defense Counsel] shall answer this
question.
63. Did you or someone at your firm receive a call
from [defendant] at 8:36:29 a.m. on May 10, 2018?
The answer to this question is not protected
by attorney client privilege and therefore
[Defense Counsel] shall answer this
question.
64. Did you . . . or someone at your firm receive a
call from [defendant] at 9:21:43 a.m. May 10th, 2018?
The answer to this question is not protected
by attorney client privilege and therefore
A-4901-18T4
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[Defense Counsel] shall answer this
question.
65. Please describe your observations of the
emotional state of [defendant] during the three phone
calls I just listed on May 9th and May 10th?
The answer to this question is not protected
by attorney client privilege and therefore
[Defense Counsel] shall answer this
question.
66. Please describe your observations of the apparent
surroundings of [defendant] as you spoke to him on
those times and dates I just listed.
The answer to this question is not protected
by attorney client privilege and therefore
[Defense Counsel] shall answer this
question.
67. At any time prior to the recovery of the body of
[the victim] were you aware of your client's
involvement in the disappearance of [the victim]?
[Defense Counsel] shall answer this
question within the time for which the
Crime-Fraud Exception applies.
68. At any time prior to the recovery of the body of
[the victim] did your client acknowledge to you any
involvement in the disappearance of [the victim]?
[Defense Counsel] shall answer this
question within the time for which the
Crime-Fraud Exception applies.
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69. [A]t any time prior to the recovery of the body of
[the victim], on June 3rd, 2018, did your client admit to
you any involvement in the disappearance of [the
victim]?
[Defense Counsel] does not have to answer
this question.
II.
On appeal, defendant presents the following arguments:
[I.] THE TRIAL COURT ABUSED ITS
DISCRETION WHEN IT ISSUED THE ORDER
TO COMPEL ON IMPERMISSIBLE BASES AS
THE ORDER SEEKS THE DISCLOSURE OF
PRIVILEGED INFORMATION AND
MATERIALS.
a. The Order to Compel impermissibly seeks
testimony and documents protected by the
attorney-client privilege.
b. The Order to Compel impermissibly seeks
privileged testimony and documents
because the crime-fraud exception does not
apply in this case.
[II.] THE TRIAL COURT CLEARLY ERRED IN
ISSUING THE ORDER TO COMPEL
BECAUSE THE TESTIMONY AND
PRODUCTION OF DOCUMENTS DIRECTED
PURSUANT TO THE COURT'S ORDER
WOULD HAVE A CHILLING EFFECT ON
[DEFENDANT'S] SIXTH AMENDMENT
RIGHT TO COUNSEL IN THIS ACTION.
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26
[III.] THE TRIAL COURT CLEARLY ERRED IN
ISSUING THE ORDER TO COMPEL
BECAUSE THE ORDER IS
UNENFORCEABLE AS IT IS AN ABUSE OF
THE GRAND JURY PROCESS.
[IV.] THE TRIAL COURT ABUSED ITS
DISCRETION IN ISSUING THE ORDER TO
COMPEL BECAUSE THE ORDER IS
UNENFORCEABLE BASED ON THE NEW
JERSEY RULES OF PROFESSIONAL
CONDUCT.
Amicus, The Association of Criminal Defense Lawyers of New Jersey,
adds the following arguments:
I. THE COURT’S ORDER DIRECTING DEFENSE
COUNSEL TO PRODUCE DOCUMENTS AND
PROVIDE TESTIMONY WOULD HAVE A
CHILLING EFFECT ON A DEFENDANT’S SIXTH
AMENDMENT RIGHT TO COUNSEL IN THIS
ACTION.
A. The Deleterious Impact of Serving a
Subpoena on an Accused’s Current
Attorney in the Matter for which the
Attorney has been Retained is Recognized
under New Jersey Law.
B. Forcing an Attorney to Produce
Documents and Testify Against His Client
Inevitably Creates a Disqualifying Conflict
of Interest for Defendant’s Chosen
Counsel.
C. The Details Sought by the State in the
Grand Jury Subpoena, Including the
A-4901-18T4
27
Details Surrounding the Retention of
Counsel, Cannot be Used Against the
Defendant.
II. BECAUSE LESS INTRUSIVE MEANS EXIST TO
OBTAIN THE INFORMATION SOUGHT IN THE
SUBPOENA, THE STATE IS NOT PERMITTED TO
SUBPOENA DEFENSE COUNSEL.
Our analysis of these arguments is guided by the following legal
principles. Grand jury proceedings are presumed valid. State v. Francis, 191
N.J. 571, 587 (2007). For that reason, a "defendant bears the burden of proving
that the prosecutor misused the grand jury for an improper purpose." Ibid.When analyzing claims of grand jury abuse, "courts have distinguished
between pre- and post-indictment grand jury proceedings in determining what
standard is to be applied[.]" Id. at 589.
[B]ased on whether the State's challenged use of the
grand jury occurred pre- or post-indictment, different
rules apply in respect of grand jury abuse claims. In the
pre-indictment setting, the inquiry must focus on
whether the evidence the State sought was relevant to
the crimes under investigation. If the claims of grand
jury abuse arise in respect to use of the grand jury after
an indictment has been returned, we join the unbroken
line of authority that holds that such use of the grand
jury is permitted unless the dominant purpose of that
use was to buttress an indictment already returned by
the grand jury. Post-indictment, the State may continue
to use the grand jury to investigate additional or new
charges against a defendant. However, once an
indictment is returned, the State may not use the grand
A-4901-18T4
28
jury to gather evidence solely in respect of the charges
already filed.
[Id. at 591-92.]
Thus, "[i]n the pre-indictment setting, the inquiry must focus on whether
the evidence the State sought was relevant to the crimes under investigation."
Id. at 589. This standard applies not only to testimonial evidence such as that
in Francis, id. at 577-79, but also to documentary evidence, State v. McAllister,
184 N.J. 17, 34-35 (2005).
If a defendant challenges the validity of a grand jury subpoena, "the State
need establish preliminarily merely (1) the existence of a grand jury
investigation and (2) the nature and subject matter of that investigation, in order
to overcome the challenge." In re Grand Jury Subpoena Duces Tecum v. State,
167 N.J. Super. 471, 472 (App. Div. 1979). "Insofar as relevancy is concerned,
all that need be shown by the State is that the documents subpoenaed bear some
possible relationship, however indirect, to the grand jury investigation." Id. at
473 (citation omitted).
Even if evidence is relevant to a grand jury investigation, the State may
be prohibited on other grounds from presenting such evidence. No one would
seriously dispute, for example, the general proposition that communications
between a defendant and his attorney made "in the course of that relationship
A-4901-18T4
29
and in professional confidence" are privileged, N.J.S.A. 2A:84A-20, N.J.R.E.
504, and beyond the reach of a prosecutor presenting a case against the
defendant to the grand jury. Our courts "vigorously" protect the privilege.
Weingarten v. Weingarten, 234 N.J. Super. 318, 324 (App. Div. 1989). "[T]he
lawyer's duty to respect confidences is beyond dispute, . . . and receives zealous
enforcement . . . . Even in the courtroom, where the search for truth is of singular
importance, an evidentiary privilege surrounds those confidences. Only the
client may waive the protection." State v. Sugar, 84 N.J. 1, 13 (1980) (citations
omitted).
In extraordinary and "the most narrow circumstances," the attorney-client
privilege can be pierced. See State v. Mauti, 208 N.J. 519, 538-39 (2012).
Those circumstances may exist where a countervailing constitutional right is at
issue and where a party has expressly or impliedly waived the privilege. Id. at
539. Even in the former instance, however, the attorney-client privilege cannot
be pierced unless the party asserting the countervailing constitutional right can
demonstrate a legitimate need for the evidence, the evidence is relevant and
material to the issue before the court, and by a fair preponderance of the
evidence, the information cannot be secured from any less intrusive source. In
re Kozlov, 79 N.J. 232, 243-44 (1979).
A-4901-18T4
30
In Mauti, the Court concluded the State could not pierce the spousal
privilege embodied in N.J.R.E. 501(2) by application of the criteria announced
in Kozlov because, among other reasons, the State failed to establish the third
requirement. The Court determined the testimony the State sought to elicit from
the spouse could be established through other witnesses and the spouse's
testimony could thus be "fairly characterized as corroborative, not
indispensable, to the State's case against [the] defendant." Mauti, 208 N.J. at
542 (quoting State v. Mauti, 416 N.J. Super. 178, 194 (App. Div. 2010)).
In addition to these narrow circumstances in which the attorney-client
privilege can be pierced, N.J.S.A. 2A:84A-20 and N.J.R.E. 504 contain express
exceptions to the privilege. One exception is "a communication in the course of
legal service sought or obtained in aid of the commission of a crime or fraud[.]"
N.J.S.A. 2A:84A-20; N.J.R.E. 504.
To establish the crime-fraud exception and thus the right to question an
attorney before a grand jury about communications with a client, the State must
establish "'something to give colour to the charge'; there must be 'prima facie
evidence that it has some foundation in fact.'" In re Selser, 15 N.J. 393, 409
(1954) (quoting Clark v. United States, 289 U.S. 1, 15 (1933)).
A-4901-18T4
31
A prosecutor's presentation of evidence to a grand jury is also
circumscribed by the Rules of Professional Conduct. RPC 3.8 provides:
The prosecutor in a criminal case shall:
....
(e) not subpoena a lawyer in a grand jury or other
criminal proceeding to present evidence about a past or
present client unless the prosecutor reasonably
believes: (1) either the information sought is not
protected from disclosure by any applicable privilege
or the evidence sought is essential to an ongoing
investigation or prosecution; and (2) there is no other
feasible alternative to obtain the information[.]
Having considered the facts presented to the trial court in light of these
principles, we conclude the trial court erred and the order compelling Defense
Counsel to appear before the grand jury must be vacated. We thus reverse and
remand this matter for further consideration.
III.
Because the argument points framed by the parties present questions of
law to be determined on undisputed facts, our review is plenary. State v.
Schubert, 212 N.J. 295, 303-04 (2012). Applying that standard, we conclude
the State made an insufficient showing that the crime-fraud exception to the
attorney-client privilege applied.
The State sought to elicit information obtained by Defense Counsel from
two sources: his morning meeting with defendant four days after the victim was
A-4901-18T4
32
assaulted, which was the same day she was murdered; and six telephone calls,
four made the same day later in the afternoon and two made the next morning.
Defense Counsel sought to quash the grand jury subpoenas issued to him on the
grounds the State was attempting to violate the attorney-client privilege and was
abusing the grand jury. Considering these arguments in light of the legal
principles previously discussed, three questions require answers: did the
questions posed by the State require Defense Counsel to violate the attorney -
client privilege; if not, were the questions relevant; and, if so, was there a
feasible alternative to obtain the information. We disagree with the trial court's
determination of the first of these questions insofar as the court concluded the
State had presented sufficient evidence to establish the crime-fraud exception.
We conclude the trial court's analysis concerning the second and third questions
was incomplete.
The trial court's order states "the crime-fraud exception removes the
attorney-client privilege for questions regarding events that took place between
May 9, 2018, at 1:40 p.m., through the evening of May 11, 2018, when
[defendant] was arrested." In other words, the trial court found the attorney-
client privilege protected communications between Defense Counsel and
A-4901-18T4
33
defendant during their morning meeting, but not during the phone calls.
Concerning the phone calls, the trial court's sole finding related to their timing:
Now, the [c]ourt has to decide, first off, if the State has
produced evidence that is sufficient to make the prima
facie showing that a crime or a fraud was committed in
connection with the attorney/client relationship.
Specifically, in this case the State argues that it has
demonstrated prior to any charges being filed that there
were in-person meetings and telephonic
communications between counsel and the defendant
. . . that appear on their face to be related to an ongoing
criminal activity and not to the lawful defense of the
pending case.
So, timing of these calls and of the crime itself is
obviously in this [c]ourt's estimation somewhat critical.
So, there [were] a lot of questions. I think there [were]
over [sixty] or more questions posed to [Defense
Counsel] at the grand jury and I think the most logical
way to handle this is to go question by question and
indicate what is privileged and what is not privileged.
The court did not comment on the State's argument after repeating it. The
argument was inaccurate. Nothing in the record suggests there was more than
one meeting between Defense Counsel and defendant on the day of the
homicide. Moreover, the record is devoid of any evidence of the content of the
discussions between Defense Counsel and defendant, so the argument the
"meetings" and telephone conversations "appear on their face to be related to an
ongoing criminal activity" has no factual support. The sole "finding" the court
A-4901-18T4
34
made was "the timing of these calls and of the crime itself is obviously in this
[c]ourt's estimation somewhat critical." That singular finding is inadequate to
establish prima facie evidence of some foundation in fact.
To be sure, three of the four calls that were transmitted between the
telephone in Defense Counsel's office and defendant's cellular phone were
placed during the time defendant appeared to be transporting the victim's body.
But the first call, which lasted one second, was made from Defense Counsel's
office. The second call, which occurred two minutes later, was initiated from
defendant's cellular phone and lasted only eleven seconds. The third call, which
lasted eighty-three seconds, was made from Defense Counsel's office. Those
calls must be considered against the backdrop of defendant having allegedly
committed an act of domestic violence four days earlier and Defense Counsel
having prepared a letter to police explaining that if they arrested defendant , they
were not to question him in Defense Counsel's absence.
Nothing in the record suggests the one-second and eleven-second phone
calls involved conversations between Defense Counsel and defendant, rather
than their merely leaving messages, let alone conversations about the ongoing
crime defendant was allegedly committing. The same can be said of the fifteen-
second call placed from defendant's cellular phone to Defense Counsel's office
A-4901-18T4
35
at 6:30 in the evening. Assuming it can reasonably be inferred that Defense
Counsel and defendant spoke during the eighty-three-second telephone call
placed from Defense Counsel's office at 2:10 in the afternoon, it is sheer
speculation to suggest the topic was the homicide, not the assault for which
defendant had apparently retained counsel earlier that day.
The same is true for the eighty-six second and eighteen-second calls
placed by defendant to Defense Counsel's office the following morning.
Significantly, a warrant had been issued the previous evening for defendant's
arrest on the assault charge. It is sheer speculation that these calls were
somehow related to the homicide and not the assault.
In short, the State's suggestion that the timing of the telephone calls during
the commission of a crime suggested they were related to that crime—without
any consideration of whether defendant had retained Defense Counsel on the
morning of May 9 for a crime he had allegedly already committed, any
consideration of the content of Defense Counsel's letter to the police, or without
any consideration of Defense Counsel's initiation of the original flurry of calls—
amounts to nothing more than surmise and conjecture. We consider the
requirement of demonstrating the crime-fraud exception to the attorney-client
privilege through prima facie evidence that it has some foundation in fact to
A-4901-18T4
36
require more than such speculation. Accordingly, we conclude the trial court
erred when it determined the State had made a sufficient showing to establish
the crime-fraud exception to the attorney-client privilege.
We further conclude the trial court's analysis of whether the information
sought by the questions was relevant to the crimes under investigation and
whether there was no other feasible alternative to obtain the information was
inadequate. For the most part, the trial court conducted no such analysis, but
rather determined only whether the information sought by a particular question
did or did not fall within the attorney-client privilege.
For example, the prosecutor asked defense counsel, "when a client comes
into your office, whoever it may be, [defendant] or otherwise, do you have [a]
standard client intake process that's utilized by your firm?" The relevancy of
that question to either the assault investigation or the homicide investigation is
difficult to discern.
Another example is the prosecutor's question, "[h]ow was [defendant]
dressed during your meeting with him on May 9th, 2018?" The purpose of this
question was presumably to establish defendant was dressed in the same clothes
in Defense Counsel's office that he wore when he lifted the victim's body into
the van, as depicted in a surveillance video. Yet, the affidavit of probable cause
A-4901-18T4
37
submitted with the record states defendant is the person in the surveillance
video. The trial court never inquired whether, given the information contained
in the affidavit of probable cause, information from Defense Counsel about
defendant's clothing was "fairly characterized as corroborative, not
indispensable, to the State's case against [the] defendant." Mauti, 208 N.J. at
542. Perhaps the facts in the affidavit of probable cause were overstated, or
perhaps it is not readily apparent from the video surveillance or the
corroborating cellular telephone location information that it was defendant who
placed the victim's body into the van and drove away. But the prosecutor was
never asked for an explanation, so we are unable to make such a determination
from the record before us.
For these reasons, we vacate in its entirety the trial court's order. We
remand this matter so that the trial court can undertake a proper analysis of the
questions posed by the prosecutor. The prosecutor should obviously be afforded
the opportunity to make proffers concerning seemingly irrelevant information
and to explain why certain information he seeks from Defense Counsel is
indispensable to the investigation rather than merely corroborative of evidence
identified in other sources, such as the affidavit of probable cause.
A-4901-18T4
38
IV.
Defense Counsel and amicus argue that subpoenaing Defense Counsel to
testify before a grand jury investigating crimes allegedly committed by his client
will have a chilling effect on defendant's Sixth Amendment right to counsel.
They also argue the issuance of the subpoena creates a conflict of interest for
Defense Counsel, which may prohibit his representation of defendant and
thereby impinge upon defendant's right to counsel.
The importance of a defendant's right to counsel and the attorney-client
privilege cannot be understated:
If the rule of law is this nation's secular faith, then the
members of the Bar are its ministers. A lawyer is the
mediator between his client's desires and the
sovereign's commands. His aid is sought because of the
relative ignorance of those to whom the law is but a
collection of dim mysteries. When confronted with the
awesome power of the criminal process, a client is
never more in need of professional guidance and
advocacy. In this setting, an instinct for survival
compels a defendant to confide in an attorney. The
necessity of full and open disclosure by a defendant, see
American Bar Ass'n, Code of Professional
Responsibility, EC 4-1 at 21C (1976), imbues that
disclosure with an intimacy equal to that of the
confessional, and approaching even that of the marital
bedroom. Cf. Griswold v. Connecticut, 381 U.S. 479,
484-486 (1965).
[Sugar, 84 N.J. at 12-13.]
A-4901-18T4
39
The concerns of Defense Counsel and amicus are thus well-founded. As one
court has noted,
[t]hat there are latent ethical issues in the serving of a
subpoena on actual or prospective counsel opponent
should be perceived without much difficulty. Even
where an indictment may not have issued, and thus
technically the attorney/witness is not yet an
"adversary," since the subpoena . . . seeks to compel
evidence concerning a person who is represented by the
attorney/witness, it relates to an established attorney-
client relationship. The serving of a subpoena under
such circumstances will immediately drive a chilling
wedge between the attorney/witness and his client.
This wedge is the natural consequence of several
underlying factors created by this anomalous situation.
Most obvious is the fact that the client is uncertain at
best, and suspicious at worst, that his legitimate trust in
his attorney may be subject to betrayal. And because
the subpoenaed attorney/witness may himself feel
intimidated, this may in fact take place if there is not
even minimal ethical control regulating the
subpoenaing of an attorney/witness to seek evidence
against his client.
[United States v. Klubock, 832 F.2d 649, 653 (1st Cir.
1987).]
Nonetheless, a defendant cannot use the right to counsel or the attorney-
client privilege to facilitate the commission of crimes. Moreover, the legal and
ethical principles that circumscribe the State's issuance of grand jury subpoenas
to defense attorneys provide a proper balance between a defendant's right to
A-4901-18T4
40
counsel and the attorney-client privilege on one hand, and the State's need to
develop and present relevant evidence to a grand jury on the other.
When these rights and needs clash and cannot be resolved by the parties,
a court's considered application of the attorney-client privilege, the quantum of
evidence required to establish the crime-fraud exception to the privilege, the
need for relevancy of information known to an attorney to the criminal
investigation at issue, and the ability of the State to obtain such evidence from
other sources, safeguards and balances the competing interests. Such considered
application of these principles did not take place here. Accordingly, we reverse
and vacate the trial court's order. We remand for the trial court's consideration
of relevancy and a feasible alternative source of the information the State seeks
from questions it still proposes to ask defendant. The trial court shall not
reconsider the crime-fraud exception to the attorney-client privilege, as we have
determined as a matter of law it does not apply. Defense Counsel shall not be
compelled to answer questions concerning information protected by the
attorney-client privilege.
Reversed and remanded for further consideration consistent with this
opinion. We do not retain jurisdiction.
A-4901-18T4
41