Fox Criminal Defense Attorneys Matthew Adams and Marissa Koblitz Kingman Help Defeat New Jersey Prosecutor’s Effort to Pierce Attorney-Client PrivilegeAugust 16, 2019 – Press Releases
Representing the Association of Criminal Defense Lawyers of New Jersey (ACDL-NJ), Fox Rothschild Partner Matthew S. Adams and Associate Marissa Koblitz Kingman helped achieve a major victory for defendants’ rights Thursday, defeating a New Jersey state prosecutor’s bid to force a criminal defense attorney to testify in a grand jury proceeding against a former client pertaining to, among other issues, the substance of the client’s communications with his lawyer.
Adams, co-chair of the firm’s White Collar Criminal Defense & Regulatory Compliance Practice, and Kingman, a member of the practice group, filed an amicus brief on behalf of the ACDL-NJ, asking the court to block a premature and misguided attempt by the Bergen County Prosecutor’s Office to compel New Jersey attorney Landry Belizaire to testify before a grand jury and turn over privileged records pertaining to his representation of a criminal defendant accused of attempting to flee to a foreign country to escape prosecution.
Bergen County Superior Court Judge Margaret Foti, the Presiding Judge of the Criminal Division, ruled in Belizaire’s favor, denying the State’s motion to compel and quashing the subpoena, thereby rejecting prosecutors’ arguments that attorney Belizaire’s testimony against his client was necessary and appropriate after the client failed to surrender to authorities at an agreed-upon time and date and allegedly attempted to flee the country.
The ruling is an important decision that protects the constitutional rights of criminal defendants against attempts by prosecutors in New Jersey aimed at piercing the attorney-client privilege and undermining defendants’ Sixth Amendment right to effective counsel, Adams said.
That Sixth Amendment right is “the ultimate checking force on the power of the state against a person whose liberty they seek to take,” he said. He further remarked that “New Jersey law is clear that less invasive means must be explored by prosecutors before seeking to invade the sanctity of the attorney-client privilege, and that was simply not done here. Instead, prosecutors sought to shortcut their way around the issue without regard to well established constitutional principles.”
In her 28-page written opinion siding with the defense, Judge Foti noted: “As it stands now, the State possesses a pool of potential investigative leads that it must make reasonable efforts to exploit before it is entitled to Belizaire’s testimony.” Although the Court made a separate finding that the State presented a prima facie showing in support of the crime-fraud exception to the attorney-client privilege, Judge Foti wrote that the “State possesses feasible alternatives for showing [the defendant’s] knowledge of [the] complaint-warrant and his agreement to self-surrender, which would sufficiently support its case that [the defendant] committed flight by obstruction.”
“The Sixth Amendment is the bedrock constitutional principle upon which our criminal justice system rests,” Adams said, in arguing the case before Judge Foti. “The broader implications of a decision allowing this subpoena in New Jersey [would have been] disastrous.”
In criminal cases, the mere issuance of a subpoena against a defense attorney can stifle the defendant’s Sixth Amendment rights by chilling honest attorney-client dialogue, diverting an attorney’s resources from his or her client’s defense to defending himself or herself in connection with motion practice, and sometimes even creating ethical conflicts that require counsel to withdraw, as was the case with Belizaire, who was forced to withdraw from representing the defendant based upon the State’s subpoena to him. All of this has the effect of stripping the defendant of his chosen counsel, Adams argued to Judge Foti during oral argument on July 26, 2019 before a courtroom packed with concerned defense attorneys.
This is why the United States Department of Justice, as well as courts at both the state and federal level have set an extremely high threshold for allowing the issuance of a subpoena to a defendant’s attorney, Adams said. Allowing a subpoena to a criminal defendant’s lawyer should be a last resort under the narrowest circumstances.
Belizaire had arranged for his client, who stands accused of several crimes including sexual assault, to turn himself in to authorities, but the client allegedly did not appear to surrender at the scheduled time. The defendant was later apprehended attempting to board a flight to Jamaica, according to prosecutors.
Following the defendant’s arrest, prosecutors served Belizaire with a subpoena for documents, including communications with his client and any third parties regarding the voluntary surrender, and sought to compel the attorney to turn over documents and testify against his client before a grand jury. The attorney refused, consistent with his legal and ethical obligations to his client, and retained counsel of his own to fight the subpoena.
The actions of the Bergen County Prosecutor’s Office — now repudiated by Judge Foti’s order — drew national attention. In addition to the ACDL-NJ’s involvement, the National Association of Criminal Defense Lawyers (NACDL) activated its Third Circuit Lawyers’ Assistance Strike Force to come to aide of Belizaire, who prosecutors have openly stated is not accused of any ethical or criminal wrongdoing.
Reflecting on Judge Foti’s opinion and order quashing the subpoena issued Thursday, Adams remarked: “When a lawyer is attacked for zealously and ethically representing his or her client, that is a matter of the highest level of constitutional significance. Our constitutional system guarantees not only bicameralism in the creation of laws and an independent judiciary to enforce and interpret them, but also the right to counsel for all that stand accused. The criminal defense lawyer’s role in our system is constitutionally guaranteed, and this outcome and the groundswell of support that came to the defense of Landry Belizaire send a clear message that efforts to undermine the criminal defense lawyer’s sacred role in our criminal justice system will not be tolerated. The organized defense bar stands at the ready to combat overreaches such as this.”
Kingman added: “Justice prevailed and the integrity of our criminal justice system has been reinforced because of this result.”
Belizaire was represented by Raymond M. Brown, Esq. and Rachel Simon, Esq. in connection with the motion practice leading to this result. Brian J. Neary, Esq. represents the accused, Belizaire’s former client. NACDL was represented by Alan Silber, Esq. and Dillon McGuire, Esq. for purposes of this motion practice.