papers of an accountant employed by the defendant,
which were in the hands of the defendant’s attorney. The
United States Supreme Court held that there was
absolutely no constitutional privilege under the Fourth
or Fifth Amendment which would preclude compliance
with the subpoena. The submission of the papers,
prepared by a third party, did not constitute a
testimonial act. Id. at 397-410. However, where a
defense counsel obtains statements from a prosecution
witness in preparation for trial and decides not to use such
statements at trial, the statements are entitled to
protection as attorney’s work product and are not subject
to discovery. State v. Williams, 80 N.J. 472 (1979).
The privilege does not permit an attorney’s
concealment of his client’s identity or the fact of his
retention as his attorney. State v. Toscano, 13 N.J. 418
(1953). However, the attorney-client privilege bars a
grand jury from compelling an attorney to answer
questions concerning the whereabouts of a client under
investigation, where the grand jury had already returned
an indictment charging the client as a fugitive, where
other less intrusive means existed to obtain information
that the client was a fugitive and to develop a record in
support of the indictment or presentment, and where the
prosecutor employed the grand jury as an investigative
arm to obtain information unrelated to the indictment.
Matter of Nackson, 221 N.J. Super. 187 (App. Div. 1987),
aff’d, 114 N.J. 527 (1989).
When the privilege is applicable, only the client can
waive the protection afforded by the attorney-client
privilege. State v. Sugar, supra. Furthermore, the formal
termination of counsel’s role as attorney for his client does
not release him from his ethical duty to preserve his
client’s secrets and confidences and, indeed, he has a
continuing obligation to refrain from revealing them.
State v. Belluci, 81 N.J. 531 (1980). However, an
attorney consulted on a limited basis for one purpose may
not be regarded as having a protected confidential
relationship with him on matters entrusted to other
lawyers. State v. Marshall, 123 N.J. 1, 69-70 (1991).
In order for a statement to come within the attorney-
client privilege, it must have been made in confidence
between a lawyer and his client in the course of the
professional relationship. The lawyer must claim the
privilege for the client unless otherwise instructed by the
client or the client’s representative. State v. Schubert, 235
N.J. Super. 212, 220 (App. Div. 1989), certif. denied, 121
N.J. 597 (1990).
An attorney need not give the prosecution names of
potential trial witnesses until it is determined whether
their testimony would be inculpatory or exculpatory,
Matter of Lependorf, 212 N.J. Super. 284, 291-92 (App.
Div. 1986), nor give advance notice of whether or not his
client intends to testify at trial. Matter of Mandell, 250
N.J. Super. 125, 129-31 (App. Div. 1991).In State v. Mingo, 77 N.J. 576 (1978), the defendant,
who was charged with rape and attempted robbery,
employed a handwriting expert to compare the
defendant’s handwriting with that on an incriminating
document. The defense sought access to the document
for purposes of comparison. The trial court, over
objection, required that the defense supply the
prosecution with a report prepared by a handwriting
expert irrespective of whether or not the defense intended
to call the expert as a witness at trial. The report
subsequently prepared by the defense expert concluded
that the defendant executed the incriminating
document. The State called this witness at trial to testify
regarding this conclusion.The Supreme Court in Mingo held that this
procedure was a denial of the Sixth Amendment right to
effective assistance of counsel and an infringement of the
attorney-client privilege. Although the report was not
“work product,” it enjoyed a limited privilege. It was
legitimate to require prior disclosure of the report if the
defense intended to introduce it or the testimony of the
expert witness at trial. However, since the defense did not
intend to do so, requiring disclosure of the report and the
identity of the handwriting expert was improper. If the
defense did not call the expert as a witness, then the State
was foreclosed from doing so or from using the expert’s
report in any way.In State v. Pavin, 202 N.J. Super. 255 (App. Div.
1985), however, the court held that the attorney-client
privilege does not apply to a communication by an
insured to his insurance adjuster unless the
communication was made for the dominant purpose of
defense of the insured by an attorney and confidentiality
was a reasonable expectation of the insured.In State v. James Blacknall, 335 N.J. Super. 52 (Law
Div. 2000), the Law Division held that the attorney-
client privilege protected statements defendant made to
a member of the county’s criminal division bail unit.
When interviewed by the bail unit’s investigator the day
after his arrest, the receipt of Miranda warnings, and the
giving of a statement denying any type of sexual contact
with his young niece, the defendant claimed to have