Fox White Collar Team Helps to Block Prosecutor’s Questioning of Criminal Defense AttorneyJuly 7, 2020 – Press Releases
The New Jersey Superior Court’s Appellate Division has adopted many of the arguments made by Fox Rothschild LLP lawyers Matthew S. Adams and Marissa Koblitz Kingman in a ruling that overturns a lower court’s decision allowing prosecutors to subpoena a criminal defense attorney to testify against his own client before a grand jury.
Adams, who argued the appeal on behalf of the Association of Criminal Defense Lawyers of New Jersey, said the prosecutorial tactic of seeking testimony from defense lawyers is designed to infringe on the defendant’s constitutional rights.
“This is just one example of a disturbing trend we have seen in which prosecutors in this state attempt to pit lawyers against their clients in a way that is almost certain to create a conflict of interest that forces the lawyer to withdraw and robs the defendant of his counsel of choice,” Adams said.
“But it’s also reassuring to see that the courts are rejecting these tactics and consistently reminding us of the sanctity of the attorney-client privilege,” Adams said.
In the case, Essex County prosecutors claimed they should be permitted to question a defense lawyer because telephone records showed several calls between him and his client just a few hours before a murder.
But Adams and Kingman argued that prosecutors were aware that the same client was also accused of an assault that occurred four days before the murder and that the telephone calls were most likely connected to that charge.
The judges of the Appellate Division agreed, writing: “It is sheer speculation that these calls were somehow related to the homicide and not the assault.”
Sharply criticizing the prosecutors, the appellate judges found in their 41-page opinion in State of New Jersey v. G.L.L. that connecting the telephone calls to a murder that had not yet occurred “amounts to nothing more than surmise and conjecture.”
Adams and Kingman argued in their brief that allowing prosecutors to subpoena a defense lawyer to testify before a grand jury investigating crimes allegedly committed by his client will have a chilling effect on the defendant's Sixth Amendment right to counsel.
The appellate judges agreed, saying those concerns are “well-founded,” and that the trial judge must always insist that prosecutors first look to every possible alternative source for information before resorting to a subpoena that targets the defense lawyer.
“Defense Counsel shall not be compelled to answer questions concerning information protected by the attorney-client privilege,” the appellate judges wrote.
Significantly, the appellate judges flatly rejected the prosecutors’ claims that the telephone records had connected the defense lawyer to the commission of a future crime and therefore opened the door to demanding his testimony under the “crime-fraud exception.”
“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,” the appellate court said.