Maraziti, In re
| Decision Date | 26 May 1989 |
| Citation | 233 N.J.Super. 488,559 A.2d 447 |
| Parties | In re Order Compelling Production for In Camera Review of Records of Joyce L. MARAZITI, Esq., Law Guardian for the Minor Children, L.P., K.P. and E.P., Appellants. STATE of New Jersey, Plaintiff, v. E.P., 1 Defendant-Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
Joyce L. Maraziti, Asst. Deputy Public Defender, for appellants, (Alfred A. Slocum, Public Defender, attorney; Joyce L. Maraziti, of counsel; Joyce L. Maraziti and James A. Louis, Deputy Public Defender, on the brief).
Linda B. Kenney, for defendant-respondent (Kenney, Kenney, Gross & McDonough, attorneys; Linda B. Kenney, Red Bank, of counsel, and Patricia M. Quigley, Fair Haven on the brief).
Peter N. Perretti, Jr., Atty. Gen., filed a brief on behalf of New Jersey Div. of Youth and Family Services (Ann Marie Seaton, Deputy Atty. Gen., on the brief).
Before Judges KING, BRODY and SKILLMAN.
The opinion of the court was delivered by
SKILLMAN, J.A.D.
This appeal requires us to decide whether a criminal defendant has a constitutional right to an in camera review of the notes of communications between his accusers and their attorney to determine whether they contain statements which are inconsistent with their accusations against him. The issue arises in the context of charges of sexual assault against defendant by his minor daughters, who subsequently have had confidential communications with a court appointed law guardian representing them in civil proceedings initiated by the Division of Youth and Family Services (DYFS). We conclude that defendant has no constitutional right to breach the confidentiality of the attorney-client privilege under these circumstances.
On October 12, 1987, defendant's wife, Linda, disclosed to DYFS a letter from her daughter, L.P., which asserted that defendant had made her "go to his room" and "do things [she] wasn't supposed to do." Thereafter, DYFS, in conjunction with local law enforcement officials, conducted a series of interviews with the defendant, Linda, L.P. and another of defendant's daughters, K.P. L.P., then age twelve, recounted how defendant forced her to have sexual intercourse and oral sex with him over a period of three or four years. K.P., then age fifteen, revealed that defendant rubbed "his crotch" against her thigh when she was ten or eleven years old.
Defendant admitted having sexual intercourse with two of his daughters from a previous marriage. He also admitted rubbing his penis against L.P.'s vagina, but he denied any penetration. Defendant denied having any sexual contact with K.P.
Defendant was indicted by a Monmouth County Grand Jury on February 23, 1988. The first and second counts of the indictment charge defendant with aggravated sexual assault and sexual assault upon L.P., contrary to N.J.S.A. 2C:14-2a and N.J.S.A. 2C:14-2b. The fourth count charges defendant with endangering the welfare of L.P., contrary to N.J.S.A. 2C:24-4a. The third and fifth counts charge defendant with sexual assault upon K.P. and endangering the welfare of K.P. As a condition of bail, defendant moved from the family home and agreed to have no contact with his children.
According to DYFS, Linda repeatedly questioned the truthfulness of L.P. and K.P.'s allegations against defendant. In fact, Linda, who was assisting in the preparation of the defense seemed to be hampering the criminal investigation by restricting the prosecutor's access to her daughters. Moreover, Linda rebuffed DYFS' efforts to secure counseling or therapy for the girls. At some point, both daughters recanted their allegations against defendant.
Subsequently, DYFS filed a verified complaint seeking to place L.P., K.P. and defendant's son, E.P., under its care and supervision. The complaint was accompanied by an order to show cause assigning a law guardian for the minor children. 2 Upon her appointment, the law guardian sent a letter to the minors which stated in part as follows:
I would like to introduce myself. I am the court appointed attorney who will represent you in the Court action involving D.Y.F.S. I am called your law guardian. My job is to speak with you and find out what your wishes are and tell those wishes to the Judge. I must also protect your interest in the Court case. I work for you--not your parents--and not D.Y.F.S. Anything you and I discuss is CONFIDENTIAL, which means I cannot discuss it with anyone without your permission. [Emphasis added.]
A hearing was held on September 23, 1988 which resulted in an order placing L.P., K.P. and E.P. under DYFS' temporary care and supervision, ordering a family evaluation and restraining defendant from contacting the minors or visiting the family residence.
Subsequently, there was a flurry of correspondence between the law guardian and defendant's counsel, who represents him in both the criminal and civil actions. The law guardian advised defendant's counsel that she would not permit her to have contact with the children, except with the law guardian's consent. Thereafter, defendant's counsel requested "memorializations or copies of all interviews with the daughters ... concerning the alleged criminal contact on them by their father." The law guardian responded that "[n]o materials will be provided to you as such matters are privileged."
On October 11, 1988, defendant filed motions in the criminal case to compel DYFS and the law guardian to release all records relating to interviews with L.P. and K.P. Defendant's motion seeking release of the law guardian's notes was supported by his attorney's affidavit which stated in pertinent part:
[O]n information and belief, the victims have on several occasions made many statements indicating that the original complaints to the police were untruthful.
This would be exculpatory material held by a governmental agency to which defendant is entitled under Brady. Therefore, defendant requests that the ... Law Guardian ... be compelled to release any and all records of interviews with the victims along with any notes of unmemorialized conversations with the victims wherein they indicated the original complaints to the police were lies.
In a reply brief, defendant agreed to an in camera inspection of the records to determine whether they contain "any contradictory statements made by the girls which would affect their credibility at trial."
The trial court decided the motions in a one paragraph letter which stated:
This will advise you that I have again reviewed [State v. Cusick, 219 N.J. Super. 452, 530 A.2d 806 (App.Div.1987) and Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) ] and I am satisfied that the defendant's request to compel the Division of Youth and Family Services to release all records including interviews with the victims is warranted, and further, that the Office of the Public Advocate/Law Guardian should release all records concerning interviews with victims; therefore, all records are to be forwarded to this Court for an "in camera" inspection.
Accordingly, an order was entered on January 19, 1989, directing the law guardian to "release all records concerning interviews with the victims to the court for in-camera review to determine whether or not defendant's attorney is entitled to same."
We granted the law guardian's motion, on behalf of the children, for leave to appeal from this order and for a stay pending appeal. 3
The threshold issue in this appeal is whether the law guardian and defendant's children occupy an attorney-client relationship in which their communications are protected by the attorney-client privilege.
The law guardian was appointed to represent the children pursuant to N.J.S.A. 9:6-8.23(a), which provides that:
Any minor who is the subject of a child abuse or neglect proceeding under this act must be represented by a law guardian to help protect his interests and to help express his wishes to the court.
In addition, N.J.S.A. 9:6-8.21(d) states that:
"Law Guardian" means an attorney admitted to the practice of law in this State, regularly employed by the Department of Public Advocate, and designated under this act to represent minors in alleged cases of child abuse or neglect.
The fact that a law guardian must be admitted to the practice of law and is designated "to represent" children in the child abuse or neglect proceedings reflects a legislative intention that the law guardian will occupy the role of the attorney for the children. This conclusion is reinforced by other sections of Title 9 which specifically authorize a law guardian to perform the responsibilities of an attorney for a litigant. Thus, a law guardian is authorized to apply for an adjournment, N.J.S.A. 9:6-8.48, and to file a motion to set aside, modify or vacate any order issued in the course of the proceedings. N.J.S.A. 9:6-8.59.
The conclusion that a law guardian occupies an attorney-client relationship with the alleged abused or neglected children is also supported by New York case law interpreting similar legislation enacted in that state. See Bentley v. Bentley, 86 A.D.2d 926, 448 N.Y.S.2d 559, 560 (App.Div.1982); see also Child Neglect Laws in America, 9 Fam.L.Q. 1, 31-33 (Table VI), 58-59 (1975) (reporting that as of 1975 more than half the states had adopted statutes authorizing the appointment of counsel for children involved in abuse or neglect proceedings).
Because a law guardian serves as the attorney for the alleged abused or neglected children, the attorney-client privilege applies to any communications made in the course of that representation. In re Advisory Opinion No. 544 of New Jersey Supreme Court Advisory Comm. on Professional Ethics, 103 N.J. 399, 404, 511 A.2d 609 (1986). "[T]he primary justification and dominant rationale" for the attorney-client privilege is "the encouragement of free and full disclosure of information from the client to the attorney." Fellerman...
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