Martin E. O’Boyle and Longport have a long and litigious history together.
Since he was cited for a zoning violation in 2005, O’Boyle has filed several lawsuits against the Atlantic County borough of less than 1,000 people, as well as several people connected with the town.
Now, one of those cases has made it to the state’s top court, where it is poised to make law on how the protections of attorney-client privilege, the ability of attorneys to coordinate strategies, and the statute meant to allow public access to government records should interact. The matter involves such fundamental issues for lawyers that the New Jersey State Bar Association will appear as a friend-of-the-court when the New Jersey Supreme Court holds arguments on Monday.
The state’s largest lawyers group has asked the Court to give guidance about whether the New Jersey Open Public Records Act (OPRA) applies to the letters, documents and other things attorneys develop related to litigation on behalf of public entities.
In papers filed with the Court, the association requested it provide wide berth to allow attorneys to advocate for clients in a “free and unburdened fashion without fear they are susceptible to having their thoughts and ideas made accessible and used against them by an adversary,” according to a brief submitted in March and signed by New Jersey State Bar Association then-President Kevin P. McCann, and written by Thomas H. Prol, who is the association’s second vice president.
The bad blood between O’Boyle and Longport goes back years. O’Boyle has sued several town officials, as well as individuals connected to its governance. Among those are: a former member of the planning and zoning board; a pair of Longport residents; and David W. Sufrin, the attorney who represents them. O’Boyle has also sued several others, including the
Press of Atlantic City related to the disputes.
In addition to the litigation, O’Boyle also sued under OPRA and got counsel fees paid and hundreds of documents from the town, according to court papers.
In 2010, using the public records act, he sought six additional letters and CDs of documents between Sufrin and Emmanuel Argentieri, the town’s outside counsel, at least one of which was captioned “confidential joint-defense attorney work product.” The town refused to provide the items, claiming they were privileged communications and that the town did not have the items in its possession.
A trial court judge sided with the town and ruled the items were outside the reach of OPRA since they were protected by attorney-client privilege because the attorneys were discussing strategy to handle the O’Boyle suits. A three-judge appeals court panel agreed.
“All the items at issue are protected attorney work product,” Judge Carmen Alvarez, who was joined by Judges Anthony Parrillo and Stephen Skillman, wrote in May 2012.
O’Boyle says the documents should be public records and that the appeals court ruling is too broad and could cover any document exchanged between attorneys who have no connection except that he sued their clients.
“Certainly more should be required before the work product privilege is invoked, such as a joint-defense agreement or some other evidence that the parties intended to work together,” wrote O’Boyle’s attorney, Walter M. Luers.
Lawyers for Longport argue the documents aren’t public since the borough never had possession of the letters or CDs. They were provided for a short time, but then returned. And even if the items were public records, they are protected.
“It is clear that attorney-client and attorney work product privileges apply,” wrote Stacy L. Moore Jr. in court papers.
Further, the case doesn’t involve a “matter of general public importance” and O’Boyle is pursuing “a longstanding campaign against Longport since previously being cited for a zoning violation,” Moore wrote.
The lawyers group has said that while the documents were clearly governmental records, they are protected from disclosure.
“Significant matters of public policy, and, more importantly, case law obviate rigidly away from their being turned over to a requestor under both the work product and joint defense doctrines,” the brief states. The documents were further protected because they reflect communications between two attorneys “in fighting a common legal nemesis of the attorneys’ respective clients,” which saves taxpayer resources.
Prol will argue the case before the state’s highest court.