### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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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 t he Superior Court of New Jersey, Law Di vision, 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. Hanl ey , Special Deputy Attorney General/Acting Assistant Prosecutor , argued the cause for respondent (Theodore N. Stephen s II, Acting Essex County Prose cutor, attorney; Matthew E. Hanley, of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

- 3.2 A

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- 18T4 Matthew S. Adams argued the cause for ami cus 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 t o 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. Fac ts 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 i s i t apparent from the briefs exactly what documents were presented

to the tr ial court. Nonetheless, during oral argument, the parties agreed we3 A

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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

th e se documents.

Defendan t 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 ne ck," 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, 201 8

— four days after assaulting the victim

— defendant entered the
victim's residence and killed her, thereby committing cr imes 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 defenda nt 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 b eing
investigated by the Newark Police D epartment, and instructed the Special
Victims Unit that defendant was not to be questioned in his absence. The record4 A

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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 return ed. 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 . W hen she left , he followed her to her

home. Defendant's cellular phone was then track ed 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 consisten tly with the tracking of defendant's
phone, carrying a body wrapped in a rug and setting it down. The man,5 A

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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 enfor cement officers later obtain ed a warrant and search ed
the garage. They seize d 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 to6 A

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disintegrate animals." Defendant's brother also opened an article sub titled "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 cellula r 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 e ighty

- 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 issu ed 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.7 A

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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 f or 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 C ounsel 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 Defens e Counsel to appear before the grand
jury. The prosecutor served D efense C ounsel 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.8 A

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- 18T4 3. Any records of payments from, or on behalf of [defendant] to [Defense Counsel].

4. Any r ecords 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

th at 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 ne eds and the grand jury needs answers to. And on a case by case basis when those questions are asked if [Defense Counsel] invokes privilege, w e'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 bill ing 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 . . . t hey should be privileged in this specific case. A nd9 A

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- 18T4 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 beli eve 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 a s 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 privileg e, 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 D efense C ounsel
before the grand jury.
The court retained jurisdiction to make a final determination as to wh ether

the attorney

- client privilege applied to any question posed to Defense Counsel10 A

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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

. Defen se 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 pas t 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

- questio n 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 charge s being filed that there were in

- person meetings and telephonic11 A

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- 18T4 communications between counsel and the defendan t . . . 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, "somewh at 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 o rder then set forth each
question and the court's disposition. We re produce 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] s hall 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.12 A

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- 18T4 3. When a cl ient 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 dur ing your

-- during your meeting with [defendant] on May 9th, 2018?13 A

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- 18T4 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

-- str ike 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?

Th e objection was withdrawn , s o [Defense Counsel] shall answer th e question.

11. Were you surprised when you learned of her death?
This question is not relevant and therefore [D efense Counsel] does not have to answer this question.

12. Did you contact anyone on behalf of [defendant] at any time?
The objection was withdrawn , s o [Defense Counsel] shall answer th e question.

13. To whom did you transmit that letter?14 A

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- 18T4 The obj ection 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 th is letter is May 9, 2018 , i s that the date you transmitted th at letter?
The objection has been withdrawn , s o [Defense Counsel] shall answer the question.

16. What time did you transmit that letter by fax?
The objection was withdrawn , s o [Defense Counsel] shall answer th e 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 pers on 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 [ d efendant's brother]?15 A

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- 18T4 The answ er 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 meeting s]?
The answer to this question is not protected by attorney client privilege and therefore [Defense Counsel] shall answer th e question.

21. Have you ever represented [defendant] in any matter?
The objection was withdrawn, so [Defense Counsel] shall answer th e question.

22. And i n 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 th e question.

23. When and in what matter or matters have you represented [ d efendant's brother]?

The objection was withdrawn , s o [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 therefore16 A

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- 18T4 [De fense Counsel] shall answer this question.

25. What monies have been received by you or your firm on behalf of [ d efendant's brother]?
The objection was withdrawn , so [Defense Counsel] shall answer the question.

26. There's no signature on the credi t 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 entire ty 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] ?17 A

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- 18T4 The answer to this question is not protected by attorney client privilege and therefore [Defense Counsel] shall answer th is question.

30. Does there exist a retainer agreement or contract of any type related to your re tention 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 relate d 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 office s [ 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.18 A

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- 18T4 34. During

-- during a meeting

-- during your meeting with [defendant] on May

-- on May 9th, 2018 , did you

-- did you conta ct 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 y our 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?19 A

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- 18T4 The answer to this question falls under the protection of the attorney

- client p rivilege 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 unde r 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 prospe ct 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 qu estion.

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]?20 A

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- 18T4 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 the refore [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 [defend ant] '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.21 A

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- 18T4 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 agai nst [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 le arn 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 bef ore 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.?22 A

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- 18T4 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 an swer 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] , ag ain , 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 Co unsel] 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/o r your law firm?23 A

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- 18T4 [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 questio n 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 p rivilege 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?24 A

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- 18T4 [Defense Counsel] shall answer this question within the time for which the Crime

- Fraud Exception applies.

61. May 9th, 2018 , between no on 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 t o 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 questi on is not protected by attorney client privilege and therefore25 A

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- 18T4 [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 [t he 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.26 A

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- 18T4 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 att orney

- 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.27 A

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- 18T4 [III.] THE TRIAL COURT CLEARLY ERRED IN ISSUING THE ORDER TO COMPEL BECAUSE THE ORDER IS UNEN FORCEABLE AS IT IS AN ABUSE OF THE GRAND JURY PROCESS.
[I V .] THE TRIAL COURT ABUSED ITS DISCRETION IN ISSUING THE ORDER TO COMPEL BECAUSE THE ORDER IS UNENFORCEABLE BASED ON T HE NEW JERSEY RULES OF PROFESSIONAL CONDUCT.

Amicus , The Association of Crimin al 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 Cre ates a Disqualifying Conflict of Interest for Defendant’s Chosen Counsel.
C. The Details Sought by the State in the Grand Jury Subpoena, Including the2 8 A

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II. BECAUSE LESS I NTRUSIVE 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

. G rand 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 mi sused 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 cont inue 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 grand29 A

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[ 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 57 7

- 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)

.
E ven 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 relationship30 A

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and in profe ssional 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 thos e 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, 53 8

- 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 informat ion cannot be secured from any less intrusive source. In

re Kozlov , 79 N.J. 232, 243

- 44 (1979).31 A

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In Mauti , the C ourt 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 sp ouse 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

54 2 (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 , 28 9 U.S. 1, 15 (1933)).32 A

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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 question s 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 D efense C ounsel from

two sources: his morning meeting with defendant four day s after the victim was33 A

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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 t he grand jury subpoena s issued to him on the
grounds the State was attempting to violate the attorney

- client privilege and was abusing the grand jury. Considering these arg uments 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.

T he trial court's order states "the crime

- fraud exception removes the

attorney

- client privilege fo r 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 Defen se Counsel and34 A

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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 i s 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 i n

- person meetings and telephonic communications between counsel and the defendant

. . . t hat 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 b etween 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 court35 A

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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 l a sted on e 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 Defe nse 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 betw een 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 Def ense Counsel's office36 A

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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
speculat ion 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 follow ing 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 t hat 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 commit ted , 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 to37 A

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require more than such speculation. Accordingly, we conclude the trial court

erred when it determined the Stat e 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

wh ether 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 w ithin 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 r elevancy 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 cause38 A

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submi tted 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 "fai rly characterized as corroborative, not
indispensable, to the State's case against [the] defendant." Mauti , 208 N.J. at

54 2 . Perhaps the facts in the affidavit of probable cause were overstated, or
perhaps it is not readily apparent from the video survei llance 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 t he 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 affor ded
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 sou rces, such as the affidavit of probable cause.39 A

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. 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 def endant'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 advo cacy. 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 disclo sure 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 .]40 A

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The concerns of Defense Counsel and amicus are thus well

- fou nded. 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 th e 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 uncer tain 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 facilitat e 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 to41 A

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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, safeg uards 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.