The defendant in In the Matter of Subpoena Duces Tecum on Custodian of Records, Criminal Division Manager, Morris County, ___ N.J. Super. ___ (App. Div. 2011), was indicted by a grand jury on charges of racketeering, falsifying records, failing to file tax returns, failing to pay gross income taxes, money laundering, and various other offenses. The defendant submitted an application for representation by the Public Defender. In connection with his application he was interviewed by an employee of the Superior Court, Criminal Division Manager’s Office, Morris County. The defendant’s application was approved.

Subsequently, the Attorney General’s Office served a trial subpoena on the custodian of records in the Criminal Division Manager’s Office seeking the application and related documents that the defendant had provided. The trial court quashed the subpoena and also denied the State’s motion for reconsideration. The Appellate Division granted the State’s motion for leave to appeal so that it could consider “whether a defendant’s application for representation by the Public Defender and the factual materials submitted in support of that application are protected by the attorney-client privilege.” The Appellate Division held that “under the circumstances of this case, where defendant’s application for representation by the Public Defender and supporting materials may contain information the State could use against him in the prosecution of the charges for which he sought such representation, defendant may invoke the attorney-client privilege.”

To arrive at that holding the Appellate Division reviewed well-established precedent concerning the attorney-client privilege and exceptions to the privilege. In so doing, the court stressed that indigent clients are entitled to the same protections as clients who hire private counsel. The Appellate Division concluded that the trial court properly applied attorney-client privilege principles in quashing the subpoena which sought, among other things, supporting materials that reflected the defendant’s assets and liabilities. The Appellate Division explained that because the defendant was charged with offenses concerning his financial condition, “the materials sought by the Attorney General’s subpoena could very well include documents or other materials that would be useful to the State in prosecuting the pending charges against defendant.”

In further support of its holding the Appellate Division discussed the Supreme Court’s recognition of the “protected nature of the information a defendant submits to secure representation by the Public Defender.” The court also analyzed other precedent, including persuasive authority, and distinguished the cases relied upon by the Attorney General. Lastly, the Appellate Division noted that the trial court’s order quashing the subpoena was “without prejudice” to a more narrowly tailored request from the Attorney General that “‘specif[ies] the nature of the information sought, along with the reasons, such that [the] Court may be able to grant a narrowly-tailored subpoena, thus avoiding any violation of the attorney-client privilege.’” The Appellate Division observed that the Attorney General had not taken up the trial court’s invitation but instead had pursued an interlocutory appeal on the premise that the defendant’s application materials were not entitled to any protection.