RECORD IMPOUNDED

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).

NOT FOR PUBLICATION WITHOUT THE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.
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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 
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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 firstdegree 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 
10 A-4901-18T4

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 
11 A-4901-18T4

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.
12 A-4901-18T4

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? 
13 A-4901-18T4

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 -- 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? 
14 A-4901-18T4

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]? 
15 A-4901-18T4

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 
16 A-4901-18T4

[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]? 
17 A-4901-18T4

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.
18 A-4901-18T4

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? 
19 A-4901-18T4

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

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]? 
20 A-4901-18T4

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 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.
21 A-4901-18T4

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 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.? 
22 A-4901-18T4

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 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? 
23 A-4901-18T4

[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 

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? 
24 A-4901-18T4

[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 
25 A-4901-18T4

[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 

[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.
26 A-4901-18T4

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 

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.
27 A-4901-18T4

[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 
28

A-4901-18T4

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 
29 A-4901-18T4

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 
30 A-4901-18T4

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). 
31 A-4901-18T4

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)).
32 A-4901-18T4

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 
33 A-4901-18T4

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 attorneyclient 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 attorneyclient privilege protected communications between Defense Counsel and 
34 A-4901-18T4

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 
35 A-4901-18T4

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 fifteensecond call placed from defendant's cellular phone to Defense Counsel's office 
36 A-4901-18T4

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 
37 A-4901-18T4

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 
38 A-4901-18T4

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.
39 A-4901-18T4

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.]
40 A-4901-18T4

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 attorneyclient 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 attorneyclient 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 
41 A-4901-18T4

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.