In Re Custodian of Records
19 A.3d 1032
| N.J. Super. Ct. App. Div. | 2011Background
- Indictment for racketeering, falsifying records, tax offenses, money laundering, and related charges against Cataldo.
- Cataldo applied for Public Defender representation; intake interview conducted by Morris County Criminal Division Manager’s Office and later approved under N.J.S.A. 2A:158A-15.1 and Rule 3:8-3.
- Attorney General subpoena sought production of all Public Defender intake documents and supporting financial materials connected to Cataldo’s indigency and representation in the State Grand Jury case.
- Trial court quashed the subpoena, noting the ongoing Public Defender representation and treating initial conversations as within the attorney‑client privilege, with the order issued without prejudice.
- Appellate court held that Cataldo’s intake materials and supporting documents are protected by attorney‑client privilege to obtain legal representation; the risk of use in prosecution and indigency considerations support preservation of privilege; cases and directives discussed support a broad protection.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the intake application and supporting materials are protected | State contends no privilege for intake materials | Cataldo argues materials are privileged as attorney‑client communications | Protected by attorney‑client privilege |
| Whether privilege applies given the risk of use in prosecution | State asserts materials could be used in prosecution | Privilege should prevent compelled disclosure to avoid chilling effect | Protected; privilege not overridden by risk of use in prosecution |
| Role of Levy and distinguishers for this case | Levy allows disclosure in certain post-conviction contexts | Levy is distinguishable; here materials concern indigent representation | Distinguished; here privilege remains intact; not open to Levy-like disclosure |
Key Cases Cited
- State v. Blacknall, 335 N.J. Super. 52 (Law Div.2000) (interview about eligibility for public defender; intermediary role supports privilege)
- In re Advisory Op. No. 544 of N.J. Supreme Court Advisory Comm. on Prof'l Ethics, 103 N.J. 399 (1986) (indigent privilege; applicability to communications with Public Defender)
- Fellerman v. Bradley, 99 N.J. 493 (1985) (balance of privilege with other policies; crime/fraud exceptions)
- Nackson, 114 N.J. 527 (1989) (balancing privilege and exceptions; confidential disclosures in context)
- Graham v. Gielchinsky, 126 N.J. 361 (1991) (discovery limits related to privilege)
- Levy, 171 N.J. Super. 211 (Law Div.1978) (limits of privilege in grand jury context; potential for in camera review)
- People v. Canfield, 12 Cal.3d 699 (Cal.1974) (protects statements in Canfield as confidential communications to obtain counsel)
- State v. Davis, 116 N.J. 341 (1989) (intermediary concept; necessary intermediary)
- Fisher v. United States, 425 U.S. 391 (1986) (confidential disclosures to obtain legal assistance are privileged)