This case is about the prosecuting authority of the State overreaching to obtain records and testimony from a lawyer about his communications with his client.
On July 26, 2019, before a packed courtroom, Scarinci Hollenbeck attorneys Raymond M. Brown and Rachel E. Simon appeared for arguments before the Honorable Margaret M. Foti, P.J.Cr., in an important case involving government overreach and the sanctity of attorney-client privilege. Mr. Brown and Ms. Simon represent New Jersey criminal defense attorney Landry Belizaire, Esq., who was subpoenaed by the Bergen County Prosecutor’s Office (BCPO) to relinquish privileged attorney-client communications and testify against a former client. The matter is In re Belizaire, and Judge Foti’s decision is expected within the next two weeks.
Protecting attorney-client communications lies at the heart of the criminal justice system. Consequently, this is a particularly compelling case to be involved in because we are spearheading a movement to protect those communications by representing a lawyer who is standing alone against the State. Scarinci Hollenbeck was joined by the National Association of Criminal Defense Lawyers and the Association of Criminal Defense Lawyers of New Jersey as friends of the Court.
Background of the Case
Scarinci Hollenbeck's client, Mr. Belizaire, represented a defendant for three days in March 2019. The defendant retained Mr. Belizaire on March 27, 2019, because BCPO detectives had made numerous visits to his home in New York. Mr. Belizaire learned that Defendant was a suspect in a 2005 rape-at-gunpoint case being handled by the BCPO. Mr. Belizaire and the BCPO then arranged for Defendant’s voluntary self-surrender around noon on March 29, 2019, at the BCPO offices in Paramus, NJ.
Fifteen minutes before the scheduled self-surrender, Mr. Belizaire notified the Assistant Prosecutor in charge that the defendant had just informed him of a one-hour delay due to a medical situation with one of the defendant’s children. In fact, the defendant was at JFK International Airport about to board a plane en route to Jamaica. Port Authority police arrested the defendant on the plane between noon and 1 PM, while the State allowed Mr. Belizaire to wait at the self-surrender site until 2 PM. The defendant was charged with aggravated sexual assault and weapons offenses and hired a new attorney.
One month later, on April 26, 2019, two armed BCPO detectives served Mr. Belizaire with a Grand Jury document subpoena. The subpoena requested all documentation of Mr. Belizaire’s communications with Defendant regarding the charges against him, and regarding the self-surrender. The documents would be supplied to the Bergen County Grand Jury convened to determine whether to indict the defendant on the sexual assault charges, as well as new charges of obstruction of justice by flight from the jurisdiction.
Mr. Belizaire turned over only non-privileged communications, asserting that responding in full to the subpoena would violate Belizaire’s confidentiality obligations under the Rules of Professional Conduct, as well as the defendant’s attorney-client privilege. In response, the BCPO filed a motion to enforce its subpoena in full, arguing that the requested communications were subject to the crime-fraud exception to the attorney-client privilege.
It is true that there are a few exceptions to the attorney-client privilege. These include a concept called the crime-fraud exception in which a client attempts to use communications with their attorney to commit a future crime. However, Scarinci Hollenbeck, Belizaire and much of the defense bar maintains that in this case, the State did not abide by another principle which is to use other information that can be obtained without invading the privilege. After argument on the 26th, Judge Foti announced that she will issue her ruling within the next two weeks.