On appeal from the Superior Court of New Jersey, Law Division, Morris County, 05-08-1128-I.
The opinion of the court was delivered by: Winkelstein, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Winkelstein and Fuentes.
Appellant was the attorney for the principals of a social club where illegal gambling activity had allegedly been conducted. A Morris County Grand Jury subpoenaed him to testify and produce documents in connection with an investigation of the club. Based in part on a certification of the chief assistant prosecutor submitted ex parte for in camera review, by order of December 16, 2005, the Law Division judge denied appellant's motion to quash the subpoena. By that same order, the judge also denied appellant's motion to obtain access to a copy of the ex parte certification.
On leave granted, appellant claims that the judge erred by considering the ex parte certification without first allowing him access to it; the attorney-client privilege and the attorney work product privilege exempt him from testifying before the grand jury; and the State abused the grand jury process by issuing a subpoena after indictments had been handed down. We disagree and affirm. Given the secrecy underlying the grand jury investigation, the judge was entitled to rely on the ex parte certification without informing appellant of its specific contents. Further, neither the attorney-client privilege nor the attorney work product privilege exempt appellant from testifying before the grand jury, although he may raise the attorney-client privilege in response to specific questions when he testifies. Finally, we agree with the trial judge that issuance of the subpoena after indictments were handed down was not an abuse of the grand jury process.
Some discussion of the facts is necessary to place the issues in context. In 2004, appellant represented a number of persons involved in the formation of a social club, known as the 5th Street Club, LLC (the club), to be located in a warehouse in Dover. His clients included Richard and Jennifer Winstock, Thomas Juskus, and Scott and Robin Furer.*fn1 At an August 2004 meeting of the Dover Zoning Board of Adjustment, appellant represented the club and its principals with regard to a request for a variance to operate the social club in an area zoned for industrial use. Richard Winstock testified before the Board that the club would be "an amusement and recreation center for adults . . . consisting of business type people . . . after hours executives . . . [and] law enforcement officers." A variety of games would be available to patrons, including billiards, board games, chess, monopoly, and backgammon. Neither Winstock nor appellant informed the Board that the club would be promoting or managing gambling activity. The Board granted the variance; the club allegedly began gambling activities on November 19, 2004.
On December 30, 2004, a detective from the Morris County Prosecutor's Office received a facsimile transmission from appellant, consisting of a three-page letter from appellant to the owners of the club, titled "Opinion Letter regarding 5th
Street Club, LLC operation." The letter stated, in part, that "[t]his Opinion Letter is provided in the course of an attorney-client relationship. Publication of this Letter is intended as a limited waiver of such privilege. All other matters protected by the attorney-client and work-product privileges with respect to such relationship are hereby reserved." While the letter stated that the prosecutor's office had requested an opinion regarding the legality of the activities conducted in the club, the State claims it is not aware of such a request.
In the letter, appellant opined that although members of the club had the option to wager on the gaming activities conducted there, such as air hockey, billiards, bridge, chess, darts, foosball, gin rummy, ping pong, pinochle, and poker, the "activities carried out at the 5th Street Club [did] not violate the law, because the Club [was] not acting as a gambling resort." Club members would be permitted to wager on the outcome of games played there as long as "no one, including the Club, act[ed] as a bookmaker," and so long as appellant's "client [did] not profit or receive remuneration for any bet or wager [placed] . . . by the individual members." The letter concluded: "if 5th Street Club, LLC operates [its] establishment in the manner in which it was described to me, the Club is not in violation of New Jersey Law."
On August 30, 2005, the grand jury indicted Richard and Jennifer Winstock, Thomas Juskus, Scott and Robin Furer, and Richard Wagner on multiple counts of conspiracy, official misconduct, perjury, and maintaining a gambling resort. On October 31, 2005, the grand jury issued a subpoena duces tecum and ad testificandum, ordering appellant to appear before it to testify and bring documents in connection with his representation of the club. After appellant moved to quash the subpoena, the State, in opposition, asked the court to review in camera an ex parte certification prepared by the chief assistant prosecutor. Appellant then moved to compel access to the ...