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Keywords

attorneysubpoenatrialtestimonymotionappellantgrand juryattorney-client privilege
attorneysubpoenatrialmotionappellantgrand juryattorney-client privilege

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In re Grand Jury Subpoena Issued to Galasso, 389 N.J.Super. 281, 913 A.2d 78

Facts

The appellant, an attorney, represented the principals of a social club, the 5th Street Club, LLC, which was allegedly involved in illegal gambling. After the grand jury indicted several individuals associated with the club, the attorney was subpoenaed to testify and produce documents related to his representation. The attorney argued that the subpoena should be quashed based on attorney-client privilege and work-product privilege, and sought access to an ex parte certification submitted by the state, which was denied by the trial court.

Some discussion of the facts is necessary to place the issues in context. In 2004, appellant represented a number of persons involved in the formation of a social club, known as the 5th Street Club, LLC (the club), to be located in a warehouse in Dover.

Issue

Did the trial court err in denying the attorney's motion to quash the subpoena and his motion to compel access to the ex parte certification?

On leave granted, appellant claims that the judge erred by considering the ex parte certification without first allowing him access to it; the attorney-client privilege and the attorney work product privilege exempt him from testifying before the grand jury; and the State abused the grand jury process by issuing a subpoena after indictments had been handed down.

Rule

The court held that the attorney-client privilege and work-product privilege do not exempt an attorney from testifying before a grand jury, and that the trial court did not abuse its discretion in allowing the state to submit an ex parte certification.

1 in a matter of first impression, trial court did not abuse its discretion in permitting state to submit ex parte certification in response to motion by attorney to quash subpoena; 2 attorney-client privilege did not apply to exempt attorney from testifying before grand jury, though attorney could raise privilege in response to specific questions when he testified; 3 neither civil nor criminal work-product privilege applied to exempt attorney from testifying before grand jury; and 4 post-indictment issuance of subpoena to attorney did not constitute abuse of grand jury process.

Analysis

The court found that the trial court acted within its discretion by allowing the state to submit the ex parte certification without disclosing its contents to the attorney. The court also determined that the attorney-client privilege did not apply to the attorney's testimony before the grand jury, although the attorney could assert the privilege in response to specific questions. Furthermore, the court ruled that the issuance of the subpoena after the indictments did not constitute an abuse of the grand jury process.

Given the secrecy underlying the grand jury investigation, the judge was entitled to rely on the ex parte certification without informing appellant of its specific contents. Further, neither the attorney-client privilege nor the attorney work product privilege exempt appellant from testifying before the grand jury, although he may raise the attorney-client privilege in response to specific questions when he testifies.

Conclusion

The appellate court affirmed the trial court's decision, allowing the attorney to be compelled to testify before the grand jury and denying his motions to quash the subpoena and to access the ex parte certification.

Consequently, we do not determine the bounds of the privilege at this time. We leave that for the trial court to determine in the context of the specific questions asked of appellant.

Who won?

The State prevailed in the case as the appellate court upheld the trial court's decisions, allowing the grand jury investigation to proceed.

We disagree and affirm.

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