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Keywords

attorneysubpoenaappealleasecompliancegrand juryattorney-client privilege
attorneysubpoenaappealcommon lawgrand juryattorney-client privilege

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Matter of Grand Jury Subpoenas Duces Tecum Served by Sussex County Grand Jury on Farber, 241 N.J.Super. 18, 574 A.2d 449

Facts

The Sussex County Grand Jury was investigating allegations regarding the Sussex County Adjuster's Office, including claims that the Adjuster failed to review the financial status of institutionalized residents and that confidential medical records were improperly released. The Lowenstein firm was retained by the Board of Freeholders to provide legal services aimed at bringing the Adjuster's Office into compliance with the law. After the firm was subpoenaed to testify about their activities, they moved to quash the subpoenas, claiming attorney-client privilege.

The salient facts are not in dispute. For approximately one year, the Sussex County Grand Jury has been investigating allegations focusing upon the operation of the Sussex County Adjuster's Office.

Issue

Did the attorney-client privilege apply to communications between the Sussex County Board of Freeholders and the attorneys from the Lowenstein firm, and were the attorneys required to appear before the grand jury to assert this privilege?

The State contends on appeal that the attorney-client privilege is not applicable to governmental entities.

Rule

The attorney-client privilege applies to communications between a public entity and its attorney, and attorneys must generally appear before a grand jury to assert this privilege in response to specific questions.

The attorney-client privilege is thus 'deeply embedded in our jurisprudence and formed a part of the common law of England prior to the birth of this country.'

Analysis

The court determined that the attorney-client privilege was applicable to the communications between the Board and the attorneys, despite the Board being a public entity. The court noted that the attorneys were providing legal services rather than management consultancy, and the premature release of a preliminary report did not constitute a waiver of the privilege. The court emphasized the importance of the attorney-client relationship and the need for confidentiality in legal advice.

The court determined that the attorney-client privilege was applicable to the communications between the Board and the attorneys, despite the Board being a public entity.

Conclusion

The Appellate Division reversed the Law Division's order quashing the subpoenas and remanded the case, requiring the attorneys to appear before the grand jury to assert their privilege in response to specific questions.

Accordingly, the order of the Law Division quashing the subpoenas ad testificandum is reversed and the matter is remanded for proceedings consistent with this opinion.

Who won?

The State prevailed in the appeal because the Appellate Division found that the attorney-client privilege did not prevent the attorneys from being required to testify before the grand jury.

The State prevailed in the appeal because the Appellate Division found that the attorney-client privilege did not prevent the attorneys from being required to testify before the grand jury.

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