                                      RECORD IMPOUNDED

                                 NOT FOR PUBLICATION WITHOUT THE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.




                                                         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).
            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

                                                                           A-4901-18T4
                                        2
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 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 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


                                                                         A-4901-18T4
                                       3
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,




                                                                        A-4901-18T4
                                       4
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


                                                                        A-4901-18T4
                                        5
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.




                                                                        A-4901-18T4
                                       6
                                     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.
                                                                       A-4901-18T4
                                      7
             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

                                                                          A-4901-18T4
                                         8
            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


                                                                          A-4901-18T4
                                        9
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

                                                                             A-4901-18T4
                                        10
            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.




                                                                          A-4901-18T4
                                       11
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?


                                                          A-4901-18T4
                          12
      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?



                                                            A-4901-18T4
                          13
      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]?


                                                          A-4901-18T4
                          14
     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


                                                       A-4901-18T4
                         15
      [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]?


                                                             A-4901-18T4
                           16
      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.




                                                         A-4901-18T4
                          17
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?


                                                          A-4901-18T4
                         18
      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]?

                                                          A-4901-18T4
                         19
      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.


                                                           A-4901-18T4
                          20
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.?


                                                         A-4901-18T4
                          21
     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?



                                                        A-4901-18T4
                         22
      [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?


                                                             A-4901-18T4
                           23
      [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


                                                           A-4901-18T4
                          24
     [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.



                                                        A-4901-18T4
                         25
     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.



                                                                 A-4901-18T4
                               26
           [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

                                                                A-4901-18T4
                                    27
                   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

                                                                         A-4901-18T4
                                       28
            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

                                                                           A-4901-18T4
                                       29
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).


                                                                            A-4901-18T4
                                        30
      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)).




                                                                         A-4901-18T4
                                      31
      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

                                                                        A-4901-18T4
                                      32
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 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.

      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 attorney-

client privilege protected communications between Defense Counsel and




                                                                          A-4901-18T4
                                       33
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


                                                                           A-4901-18T4
                                        34
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 fifteen-

second call placed from defendant's cellular phone to Defense Counsel's office


                                                                            A-4901-18T4
                                        35
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


                                                                            A-4901-18T4
                                       36
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


                                                                          A-4901-18T4
                                        37
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.




                                                                           A-4901-18T4
                                         38
                                         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.]


                                                                          A-4901-18T4
                                         39
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 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 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 attorney-

client 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



                                                                          A-4901-18T4
                                       40
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.




                                                                         A-4901-18T4
                                      41
