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Matter of Nackson

Decided: March 29, 1989.


On certification to the Superior Court, Appellate Division, whose opinion is reported at 221 N.J. Super. 187 (1987).

For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For reversal -- None. The opinion of the Court was delivered by O'Hern, J.


We are asked to consider whether the attorney involved in this case properly declined to disclose to a grand jury the whereabouts of a client who had consulted the attorney about a fugitive warrant. We find that the balance between the public's right to every person's evidence and the need for confidentiality in the attorney-client relationship has been properly drawn, and affirm the Appellate Division's judgment holding that, in the circumstances of this case, the attorney properly declined to disclose the information.


For purposes of this appeal, we accept the facts recited in the State's brief. On November 13, 1978, the New Jersey State Police arrested Mark Meltzer in Hunterdon County on charges of criminal possession of narcotics. At the time of the arrest, Meltzer gave a Hialeah, Florida address. Bail was set by the municipal court in the amount of $10,000, ten percent cash. Shortly thereafter, the defendant posted bail and was released.

On April 29, 1979, a Warren County Grand Jury indicted Meltzer on charges of possession of and possession with an intent to distribute marijuana. On January 25, 1979, a letter appearance was entered on behalf of Meltzer by his attorney, Joseph Nackson. Thereafter, Nackson requested and received several adjournments of arraignment until September 14, 1979.

At that time, Nackson informed the Warren County Prosecutor's Office that Meltzer was in jail in Iowa and as a result could not appear. Consequently, Meltzer's bail was revoked and a bench warrant was issued for his arrest by the Superior Court. A search of the CDS Registry Act records indicated an address for Mark H. Meltzer at 1820 W. 46th Street, Apartment 605, Hialeah Avenue, Chicago, Illinois. Correspondence sent to addresses in both Florida and Chicago was returned "addressee unknown."

Although Nackson had never met with his client, he had spoken with him by telephone and had attempted to arrange a plea agreement for him with the Warren County Prosecutor's Office. Meltzer, aware that he was a fugitive, told his attorney that he would return to New Jersey to answer the pending indictment only if a plea agreement could be worked out. On June 25, 1987, Nackson telephoned the Warren County Prosecutor informing him that Meltzer had "reformed" and was a "legitimate businessman" somewhere in the Chicago area. The prosecutor demanded that Nackson reveal his client's exact whereabouts, but Nackson refused to disclose any further information, claiming an attorney-client privilege.

Nackson was then subpoenaed by the State to appear before the grand jury on July 2, 1987, to obtain information about Meltzer's whereabouts. That day, Nackson moved unsuccessfully before the Law Division to quash the subpoena. The court did rule, however, that Nackson could refuse to answer any questions protected by the attorney-client privilege.

Nackson told the grand jury that he had no knowledge of the whereabouts of his client, but that he recently had telephoned Meltzer somewhere in the Chicago area. Nackson refused to answer five questions, asserting the attorney-client privilege:

(1) What number did you call when you called him 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 that he should comply with the law?

(4) Can you tell the Grand Jury what his occupation is?

(5) Can you tell the Grand Jury by whom he is employed at the present time?

The prosecutor then filed an order to show cause why Nackson should not be held in contempt. The Law Division found that the responses to questions two and three were indeed protected by the attorney-client privilege. However, the court required Nackson to answer the remaining questions concerning his client's telephone number, occupation, and employer. In the Law Division's view, the client's whereabouts and employer were not confidential information protected by the attorney-client

privilege because such nondisclosure would "obstruct justice." The Appellate Division granted Nackson's motion for leave to appeal and a stay of the proceedings.*fn1 Reversing the judgment of the trial court, the Appellate Division held that if there were "less intrusive means for obtaining information necessary to return an indictment against the client of an attorney, those means must be pursued to avoid any infringement on the cherished Sixth Amendment and state constitutional right to counsel." 221 N.J. Super. 187, 206-07 (1987).

We granted the State's petition for certification. 110 N.J. 290 (1988). We also granted leave for the Office of the Attorney ...

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