NJSBA to Supreme Court: Virtual grand jury trials are unconstitutional
New Jersey State Bar Association (NJSBA) Trustee Brian J. Neary argued on behalf of the NJSBA before the Supreme Court last week contending that virtual participation of grand jurors is unconstitutional because of the lack of secrecy and impediments to due process. The matter of State v. Vega-Larrequi is before the Supreme Court to determine whether virtual grand jury trials may proceed. The NJSBA participated as amicus curiae, and Neary and NJSBA Trustee Christopher J. Keating authored the brief.
Vega-Larregui’s attorneys argued that the virtual participation of grand jurors hampered the defendant’s proceeding, while the state maintained that the process was in good faith. The NJSBA argued that virtual grand juries are unconstitutional and raised concerns about the proper utilization of technology during this “sacred process.”
Neary raised two strong arguments: the issues that virtual grand jurors may pose to due process and the violation of secrecy that may occur during this format. Issues regarding due process are called into question when emphasizing the difference in the process of deliberation and review, said Neary. He pointed out that the process of grand jurors meeting privately face-to-face in a quiet room is compromised when performed virtually. Jurors may also not be familiar with the virtual technology, and can become affected by audio or video loss during the proceeding.
Neary relied on State v. Del Fino, a case that established precedent that all jurors shall be present at the same time and given the same information. Neary pointed out that technical issues could impede on this precedent. During virtual deliberation and proceedings, the jurors may not be presented with the same private and focused atmosphere they would have in the court room. This leads to the other vital piece of Neary’s argument, that secrecy may be compromised during a virtual proceeding. Both parties are vulnerable to a breach of privacy that could potentially endanger those involved, such as witnesses whose identity must remain confidential.
The NJSBA urged the Supreme Court to wait for the courts to safely reopen, which is imminent given the availability of COVID vaccines and safety protocols. It continues to monitor this matter, as well as court re-openings.
“Reply all” contains implicit consent to speak to clients, not ethical breach, ACPE says
An inquiry from an attorney who sends email to opposing counsel copying his client as to whether a response to everyone on the email constitutes a breach of the Rules of Professional Conduct 4.2 led to a four-page opinion by the Advisory Committee on Professional Ethics (ACPE) on the use of cc and “reply all.” In ACPE Opinion 739, the committee said, “Lawyers who initiate a group email and find it convenient to include their client should not then be able to claim an ethics violation if opposing counsel uses a ‘reply all’ response.”
RPC 4.2 outlines the parameters for lawyer-client contact and expressly prohibits a lawyer communicating with a person who the lawyer knows is represented by counsel. ACPE acknowledged that email is an informal form of communication, comparing group emails to conference calls rather than written letters. “When lawyers copy their own clients on group emails to opposing counsel, all persons are aware that the communication is between the lawyers,” the ACPE said in the opinion. “The clients are mere bystanders to the group email conversation between the lawyers.”
The ACPE opinion further distinguishes between a lawyer who “replies all” and directs the communication to the client, versus the other lawyer who initiated the communication. But it took issue with requiring the other attorney to have to parse through group emails for recipients to omit a client.
“Accordingly, the Committee finds that lawyers who include their clients in the “to” or “cc” line of a group email are deemed to have provided informed consent to a “reply all” response from opposing counsel that will be received by the client.”
A full copy of ACPE 739 may be found at njcourts.com.
Samantha Fitzgerald, a Rutgers University student serving as an extern with the NJSBA, contributed to this report.
This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.