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In re Gonnella

Decided: August 28, 1989.

IN RE GRAND JURY SUBPOENA AD TESTIFICANDUM SERVED ON LOUIS GONNELLA, ESQUIRE


Kuechenmeister, J.s.c.

Kuechenmeister

This case concerns itself with Louis Gonnella's motion to quash a grand jury subpoena served upon him by the Bergen County Prosecutor. The facts which led up to the issuance of the subpoena are as follows:

In late January of 1989, one John Martini and co-defendant, Theresa Afdahl, were arrested for kidnapping/murder of a local businessman, Irving Flax. Shortly thereafter, Louis Gonnella, a Bergen County Public Defender, was assigned to represent Mr. Martini on charges of capital murder. Mr. Gonnella's representation lasted until early June of 1989 when he informed his boss, Mr. Wagner, that he would no longer be able to serve as Mr. Martini's counsel.

Approximately June 15, 1989, the New Jersey Public Defender, Alfred A. Slocum, arranged for a meeting with the Acting Bergen County Prosecutor, John Holl. Mr. Slocum reported to

the Prosecutor certain conversations alleged to have taken place between Mr. Martini and Mr. Gonnella. The substance of these alleged conversations was to the effect that Mr. Martini wished Mr. Gonnella to see to it that Mr. Neal Frank, the assigned attorney for Mr. Martini's co-defendant, was removed from the case. Mr. Martini allegedly intimated that if this was not, in fact, done, he would have Mr. Frank killed. Mr. Slocum informed the Prosecutor that as a result of these alleged conversations both Mr. Frank and Mr. Gonnella were being removed as counsel from the case.

At this meeting between Mr. Slocum and Mr. Holl, it was suggested that Mr. Gonnella be contacted by the Prosecutor's Office for the purposes of substantiating these allegations so that the appropriate action could be taken by the Prosecutor's Office. Mr. Gonnella was, in fact, contacted. However he refused to divulge any information, maintaining that any and all conversations between himself and Mr. Martini were subject to the attorney-client privilege. Mr. Gonnella was then promptly served with a Grand Jury subpoena directing him to appear and testify concerning the alleged threats made by Mr. Martini involving Mr. Frank.

Mr. Gonnella, through his counsel, has filed this motion to quash the said Grand Jury subpoena on the grounds that any and all conversations he had with Mr. Martini were and are covered by the attorney-client privilege and to force him to testify would put a chilling effect on the future of this privilege. The State opposes the motion to quash on the grounds that the alleged conversations which are the subject of the subpoena fall within the "crime-fraud" exception to the attorney-client privilege and therefore, Mr. Gonnella should be ordered to come forward and divulge any information pertinent to this investigation.

I. ATTORNEY-CLIENT PRIVILEGE

The attorney-client privilege is one of the most deeply rooted privileges in our justice system. It is codified in N.J.S.

2A:84A-20 and Evidence Rule 26 and has been upheld by our own Supreme Court most recently in Matter of Nackson, 114 N.J. 527, 555 A.2d 1101 (1989). The purpose of the privilege is to promote full and open discussion between a client and his attorney so that the attorney may provide the client with the best representation under the circumstances of each case. In criminal cases, the privilege is of utmost importance. Our Supreme Court equates it "with an intimacy equal to that of the confessional." State v. Sugar, 84 N.J. 1, 13, 417 A.2d 474 (1980).

However, as important and sacrosanct as this privilege may be, it is not absolute. See, Fellerman v. Bradley, 99 N.J. 493, 493 A.2d 1239 (1985); In Re Richardson, 31 N.J. 391, 157 A.2d 695 (1960); In Re Selser, 15 N.J. 393, 105 A.2d 395 (1954); In Re Toscano, 13 N.J. 418, 100 A.2d 170 (1953); In the Matter of Stein, 1 N.J. 228, 62 A.2d 801 (1949). The privilege is limited to those situations in which lawful legal advice is the object of the relationship. Fellerman v. Bradley, at 504, 493 A.2d 1239. And, the privilege "has never ...


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