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In re Levy

Decided: December 21, 1978.

IN THE MATTER OF THE GRAND JURY SUBPOENA DUCES TECUM SERVED UPON S. DAVID LEVY, DEPUTY PUBLIC DEFENDER, UNION COUNTY


DiBuono, A.j.s.c.

Dibuono

This cause is before the court on motion to quash subpoena duces tecum from the Union County Grand jury served upon S. David Levy, Deputy Public Defender for Union County.

The facts and circumstances underlying this motion are not substantially in dispute, and are as follows:

On September 22, 1977 a defendant, R.J.B., under indictment in Union County, completed a two part form known as an L-R-20. Part 1 is an application for representation by the Public Defender, and the other is an affidavit of defendant's income and assets. The only asset listed by the defendant was personal property having a value of $500. Defendant's application as an indigent was accepted and the Public Defender represented him through his guilty plea and sentence.

Two days prior to the time he made application to the Public Defender for representation, the defendant had withdrawn $2,829.50 from checking account #057-299-00 at the New Jersey Savings Bank in Hunterdon County. On December 19, 1977 defendant posted a cash bail for himself and a co-defendant in the form of a Certified Check in the sum of $2,000.00 drawn on account #110093718 in the Hunterdon Trust Company. After the withdrawal of the bail money, a balance of $972.35 remained. These two accounts were closed on or about January 12, 1978, 3 1/2 months subsequent to defendant's application for legal aid.

Defendant is also believed to have had an interest in a third account in the Hunterdon County Trust Company in

the name of Landmark Service, as indicated by a signature card, authorizing withdrawals signed by the defendant R.J.B., and the same codefendant. This account was opened on November 25, 1977 within about two months of defendant's application for representation by the Public Defender because of alleged indigency. On December 12, 1977, this account had a cash balance of $5,874.74.

The Union County Prosecutor's Office, by reason of a continuing investigation, believes that defendant may have knowingly and intentionally misrepresented his assets to the Public Defender in order to fraudulently procure legal services. The prosecutor asserts that the Public Defender may be in possession of evidence which would tend to indicate that defendant did, in fact, perpetrate a fraud upon the Public Defender.

On June 21, 1978 S. David Levy, Deputy Public Defender for Union County, was served with a subpoena duces tecum from the Union County grand jury to "produce copies of all financial investigation reports which relate to R.J.B.'s application to the Public Defender's including but not limited to credit reports, investigation notes, investigative memoranda, incorporation papers, mortgage records, promissory notes, financial statements and any invoices or billings from the office of the Public Defender to R.J.B." This motion is made to quash that subpoena on the grounds that it asks for information protected by the attorney-client privilege.

The court addresses itself, therefore, to the single issue of whether information touching upon a defendant's indigency, given by a defendant to the Public Defender or obtained by the Public Defender in its investigation, is protected by the attorney-client privilege.

That the attorney-client privilege is essential to the maintenance of a client's faith in counsel and is designed to facilitate free exchange between the client and his attorney is well recognized. In re Richardson , 31 ...


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