NJ Needs an AG Directive on Subpoenas Directed to Criminal Defense Attorneys

October 3, 2019Articles New Jersey Law Journal

Three recent cases in New Jersey point to a disturbing trend in state-level criminal practice; indeed, an epidemic that warrants immediate and decisive action by the Attorney General. Action is needed to stem the tide of an alarming pattern of prosecutorial overreaches. If reform does not happen now, it will not be long before there will be lasting damage to the criminal justice system in this state through the continued erosion of the constitutional protections that help preserve the rights of an accused person. Although state prosecutors in New Jersey must overcome one hurdle outlined in the Rules of Professional Conduct (RPC) if they plan to subpoena a criminal defense attorney to testify against his or her current or former client, the RPCs have proven not to be a significant enough deterrent in recent months.

New Jersey RPC 3.8(e) governs the ethical responsibilities of state prosecutors with regard to subpoenas directed to criminal defense attorneys. The rule states generally that, “[t]he prosecutor in a criminal case shall … not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client[.]” However, there is a significant, but precise exception to that stated general premise, which reads, “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[.]” (Emphasis added.)

New Jersey is not alone in placing special responsibilities on prosecutors. American Bar Association (ABA) Model Rule of Professional Conduct 3.8(e) has nearly the same language as RPC 3.8(e). Furthermore, in the latest iteration of its Justice Manual (JM) governing the conduct of federal prosecutors, the U.S. Department of Justice (DOJ) has enacted a policy placing significant controls around when and how a criminal defense lawyer can be subpoenaed in the course of a criminal investigation, fittingly named “Guidelines for Issuing Subpoenas to Attorneys for Information Relating to the Representation of Clients.” Something akin to DOJ’s policy on this issue, memorialized in the current JM, as well as in its predecessor, formally known as the U.S. Attorney’s Manual (USAM), is precisely what the New Jersey Attorney General needs to promulgate at this time where criminal defense lawyers are facing an onslaught of overreaching demands from state prosecutors that place them in the untenable position of being called to bear witness against their present or former clients.

The policy served by the New Jersey RPC, the ABA Model Rule of Professional Conduct, and DOJ’s JM/USAM coverage of the topic of subpoenas to criminal defense lawyers by criminal prosecutors is not merely a gratuitous professional courtesy. Yet astonishingly that is what some state prosecutors in New Jersey seem to suggest as they double down on arguments that advocate for authority to allow their improper subpoena conduct to persist. This is a matter of the highest constitutional significance.

The Sixth Amendment to the U.S. Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense.” A defendant’s right to counsel is similarly guaranteed by Article I, paragraph 10 of the New Jersey Constitution. There are few guarantees in our system of criminal justice, and one of them is the right to a criminal defense lawyer.

The purpose of the fundamental right to counsel is to enable the defendant to confront the prosecution against him or her, and to ensure the integrity of the judicial process as a whole. That hallmark of our system of criminal justice is diminished and suppressed when thinly veiled prosecutorial harassment is permitted to masquerade as a state prosecutor’s “strategic” exercise of his or her Grand Jury Subpoena authority. There is a chilling effect on the right to counsel when the state is arbitrarily permitted to disrupt the attorney-client relationship.

When a defendant’s chosen attorney is forced to produce documents and thereafter is forced to testify regarding details surrounding the contents and creation of those documents, the attorney is placed in a position where he or she is likely being compelled to violate the New Jersey RPCs by becoming a witness against his or her own client. The impact of that compelled adversarial dynamic is that the defense attorney is likely to be conflicted out of their representation of the defendant altogether to avoid running afoul of his or her ethical duties. In that scenario, the state has used its subpoena power as ammunition to “create” a disqualifying conflict for the defendant’s chosen counsel.

In August, the presiding criminal judge in Bergen County, the Honorable Margaret Foti, ruled in a defense attorney’s favor, quashing the State’s subpoena and rejecting the State’s arguments that the defense attorney must testify before the Grand Jury. The defense attorney, Landry Belizaire, had arranged for his client to turn himself in to authorities. But the client, who stood accused of several crimes including first degree sexual assault, did not appear to surrender at the scheduled time. The defendant was later apprehended at an airport attempting to board a flight to Jamaica. 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 in relation to a fourth degree obstruction by flight. Belizaire refused, consistent with his legal and ethical obligations to his client, and retained counsel to fight the subpoena.

On Aug. 23, 2019, Judge Foti held, relying upon RPC 3.8(e), that there were feasible alternative means for the State to acquire the sought-after information that must be pursued before it could subpoena a defendant’s former lawyer. Judge Foti concluded that the State possessed a pool of potential investigative leads that it had to make reasonable efforts to exploit before it was entitled to Belizaire’s testimony. Judge Foti denied the State’s Motion to Enforce the Grand Jury subpoena. This result was covered in a feature article by the New Jersey Law Journal at the time of Judge Foti’s decision. By way of update, on Sept. 4, 2019, the State filed a Motion for Reconsideration, as well as a Motion to Enforce a second Grand Jury subpoena issued to Belizaire on Sept. 2, 2019. Defense counsel, as well as amici, argued that the State did not meet its burden for reconsideration, and failed to demonstrate that there were no other feasible alternative means to obtain the information sought in the State’s latest subpoena to Belizaire. The court is expected to entertain oral argument on this recent round of motion practice in October.

Defense attorneys have also been targeted by state-level prosecutors in Essex and Middlesex counties. The Essex County matter, where a homicide defendant’s sitting defense lawyer was subpoenaed, is before the Appellate Division on expedited interlocutory appeal. The Middlesex County matter involves payments to a former confidential informant by prosecutors to secretly record a pretrial investigative meeting between the former informant and defense counsel in the course of the defense’s investigation. That matter is before the Appellate Division as well.

While the pending cases work their way through our courts, one thing is apparent. The state’s chief prosecutor—a former supervisory federal prosecutor well-versed in the requirements placed upon federal prosecutors by DOJ pursuant to the USAM/JM when seeking to subpoena a criminal defense lawyer—can and should step in with clear, unambiguous guidance for the 21 state prosecutors’ offices throughout New Jersey, on the circumstances in which a subpoena to a criminal defense attorney is appropriate. What is occurring under the current system with respect to subpoenas directed to defense lawyers is unacceptable. The time is now for meaningful reform in this critical area of individual rights in New Jersey.

Reprinted with permission from the October 3, 2019 issue of the New Jersey Law Journal. (c) 2019 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.