On appeal from Superior Court, Law Division, Warren County.
O'Brien, Havey and Stern. The opinion of the court was delivered by Stern, J.A.D.
[221 NJSuper Page 189] Joseph Lewis Nackson, an attorney admitted to the bar of this state, appeals, on leave granted, from an order of the Law Division directing him to answer questions before a Warren County Grand Jury concerning the whereabouts of his client, a fugitive.*fn1 Nackson challenges the ability of the grand jury to question an attorney who represents the target of its investigation and claims that questions directed to an attorney concerning the whereabouts of his client are prohibited by the attorney-client
privilege. We agree that the order directing Nackson to answer the questions was improper. However, we hold only that in the aggregate of circumstances the claim of privilege addressed to the specific questions asked was improperly denied.
In April of 1979, the Warren County Grand Jury indicted Mark Meltzer for unlawful possession of marijuana, N.J.S.A. 24:21-20a(4), and possession of that substance with intent to distribute, N.J.S.A. 24:21-19a(1). While we have been presented with letters between Nackson, on the one hand, and the trial court and prosecutor, on the other, with respect to a date for arraignment, the record does not reflect any entry of a formal appearance. See R. 3:8-1.*fn2 There is no question that the arraignment was adjourned because Nackson advised the prosecutor and the court that Meltzer was incarcerated elsewhere.*fn3 An endeavor to serve a notice of arraignment at Meltzer's last known address was unsuccessful, and a bench warrant was issued on September 17, 1979, when Meltzer failed to appear on the adjourned arraignment date. Apparently, at some time in 1985 and again during the week of June 29, 1987, Meltzer communicated with Nackson concerning his possible return to New Jersey for disposition of the criminal charges.
After discussions with the prosecutor concerning disposition of the matter, Nackson was subpoenaed to appear before the
grand jury on July 2, 1987.*fn4 He moved to quash the subpoena requiring his appearance. In denying the motion as "premature," the motion judge indicated that the attorney-client privilege could be asserted in response to specific questions. The judge stated, "I don't necessarily know of any authority which would permit me to quash the subpoena, because if I quash the subpoena the issue dies right there. . . . It seems to me it's premature for me to decide the matter at this point."
Accordingly, Nackson appeared before the grand jury. Before he testified, however, the prosecutor presented testimony from Lt. Kent Bergmann of the Warren County Prosecutor's Office indicating the background and the fact that Meltzer had been indicted, had not appeared for arraignment, was the recipient of notices to appear and was a fugitive. Nackson subsequently answered many questions posed before the grand jury, but as the attorney-client privilege is a privilege of the client and requires the attorney to claim the privilege for the benefit of the client unless otherwise instructed by the client, no one suggests that any responses by Nackson to the grand jury constituted a "waiver" of the privilege. See Evid. R. 26, 37; In re Advisory Opinion No. 544 of N.J.Sup.Court, 103 N.J. 399, 405-406 (1986); Fellerman v. Bradley, 99 N.J. 493, 498 (1985). Nackson advised the jury that he had been retained by Meltzer through a Chicago law firm in 1978 or 1979; that most of the communications concerning Meltzer were through that law firm, and that "I have no address for him [Meltzer], I do -- I am in possession of a telephone number, and I have dealt with a law firm in Chicago." He testified that he had a recent discussion with his client and with the prosecutor about disposition of the charges, including Meltzer's obligation to return to New Jersey to comply with any agreement that might have
been reached,*fn5 and that he had heard that his client had been arrested in Chicago on a motor vehicle offense in 1986 at which time there was a decision not to extradite to New Jersey.*fn6 Nackson testified that the conversations in 1985 "[were] done through the attornies [ sic ] in Chicago," but that he had spoken with Meltzer directly during the week of June 29, 1987. While Nackson revealed telephone numbers of his office and of the office of the attorney in Chicago, he refused to answer five questions during the course of his grand jury appearance and did so on the basis of the attorney-client privilege. Those questions were:
(1) What number did you call when you called him [Meltzer] back [during the week of June 29, 1987]?
(2) Did you advise your client that in the opinion of the Warren County Prosecutor's Office, he was a fugitive from justice?
(3) Have you advised him [Meltzer] that he should comply with the law?
(4) Can you tell the Grand Jury what his [Meltzer's] occupation is?
(5) Can you tell the Grand Jury by whom he is employed at the present time?
At the direction of the grand jury, the prosecutor filed an order to show cause why Nackson should not be held in contempt for refusing to answer these questions. The petition indicated that Nackson had represented Meltzer since 1979, and that he refused
to answer the five questions "upon the stated ground of attorney-client privilege." The petition continued:
6. Mark Howard Meltzer is a fugitive from justice, having failed to appear before this Court on September 14, 1979, or thereafter, to answer a criminal charge then and now pending against him, that is, a certain indictment (I 250-J-78) charging possession of marijuana and possession of marijuana with intent to distribute.
7. The information sought by the aforesaid questions would disclose or aid in disclosing the whereabouts of Mark Howard Meltzer and thus facilitate his being brought before this Court to answer to the said indictment.
8. By refusing to answer these questions, Joseph Lewis Nackson is aiding Mark Howard Meltzer in the commission of a crime, (N.J.S.[A] 2C:29-7 and 2C:29-9) and of a fraud upon the Court. See Fellerman v. Bradley, 99 N.J. 493 (1985).
9. The information sought by the aforesaid questions is not the subject of attorney-client privilege and may not properly be withheld from the Grand Jury. R.P.C. 1.6(c)(3); R.P.C. 8.4(d).
A judge of the Law Division concluded that questions two and three did not have to be answered in light of the attorney-client privilege, but that Nackson was required to answer questions one, four, and five before the grand jury, "unless prior to such time respondent has already provided such information to the Warren County Prosecutor." We granted a stay of the proceedings and leave to appeal.
In the course of the proceedings before us relating to the stay and leave to appeal, we raised a question concerning possible application of the Fifth Amendment privilege against self-incrimination flowing from the assertions in the petition with respect to Nackson's conduct. We directed the parties to "brief the impact of paragraph 8 of the petition for order to show cause" in light of N.J.S.A. 2C:29-3a, which proscribes hindering the "apprehension, prosecution, conviction or punishment of another." In light of the prosecutor's representation that he does not seek an indictment against Nackson and will immunize him, presumably pursuant to N.J.S.A. 2A:81-17.3, and because Nackson at this point has not personally asserted the privilege against self-incrimination in the proceedings, see
State v. Jamison, 64 N.J. 363, 378 (1974); In re Addonizio, 53 N.J. 107, 116-117 (1968); In re Boiardo, 34 N.J. 599, 604 (1961), we do not consider any Fifth Amendment issue or decide the case on that basis.
The "lawyer-client privilege," N.J.S.A. 2A:84A-20, embodied in Evid.R. 26, provides, in part, that:
communications between lawyer and his client in the course of that relationship and in professional confidence, are privileged, and a client has a privilege (a) to refuse to disclose any such ...