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Attorney-Client Privilege in New Jersey

When accused of a crime, a defendant may speak with an attorney with few risks that the attorney will disclose the information or for the attorney communications to be used against the defendant in court because of the attorney-client privilege.

The attorney-client privilege let’s a New Jersey criminal defense attorney be a defendant’s rope to hold on to when going through the emotional difficulties of criminal defense. Like the 4th Amendment in the United States Constitution which guarantees that a state will not engage in any unreasonable search and seizure, the attorney-client privilege prevents an opposing party from using attorney communications in prosecuting a case.

A defendant has standing to invoke the 4th Amendment when he has a reasonable expectation of privacy in the area searched or items seized. The 4th Amendment applies only to government actors, not private entities like companies a person may work for. The attorney-client privilege applies to both state and private actors. Communications with an attorney may be oral or written. The New Jersey Supreme Court suggested in Stengart v. Loving Care Agency, Inc., Docket No. A-16 September Term 2009, 2010 N.J. LEXIS 241 (March 30, 2010) that New Jersey courts may be willing to extend attorney-client privilege to protect from disclosure or use in evidence, an employee’s emails sent through an employer’s computer systems.

In Stengart, the New Jersey Supreme Court decided that an employee had a reasonable expectation of privacy when accessing personal, password protected, web-based email through her employer’s laptop even though the employer later read the emails. Though the company had technology policies expressly allowing the employer to monitor equipment usage, the court indicated the policies may not be sufficiently detailed to prevent the attorney-client privilege which keeps communications between an attorney and a client confidential. The court said the employer in the lawsuit did not expressly warn about monitoring personal, password-protected, web-based email and was not clear about Internet usage with company equipment. Without notice, such as an employee signing an acknowledgment, an employer has less ability to enforce a policy to negate privilege.

In Stengart, the New Jersey Supreme Court decided an employer’s attorneys had ethical requirements to return the employee’s emails recovered from the employer’s hard drive without reading them, and that if they did not do so, they could be sanctioned.

When accused of a crime, engage an experienced New Jersey criminal defense attorney who knows rules of evidence and professional responsibilities.

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