The statutory and common-law standard for determining what constitutes a privileged communication is quite broad in terms of encompassing attorney-client conversations. For a communication to be privileged it must initially be expressed by an individual in his capacity as a client in conjunction with seeking or receiving legal advice from the attorney in his capacity as such, with the expectation that its content remain confidential.
Joseph Lewis Nackson, an attorney, appeals on leave granted, from an order of the Law Division directing him to answer questions before a Warren County Grand Jury concerning the whereabouts of his client, a fugitive. Nackson challenges the ability of the grand jury to question an attorney who represents the target of its investigation and claims that questions directed to an attorney concerning the whereabouts of his client are prohibited by the attorney-client privilege.
Should counsel be compelled to answer the questions posed?
The court concluded that because the grand jury had already returned an indictment charging the client as a fugitive, there were other means of obtaining information and of developing the record and the prosecutor was employing the grand jury as his investigative arm, the attorney could not be compelled to answer questions before the grand jury concerning the whereabouts of his client. The order was reversed.