By: Robert A. Bianchi, Esq. (Morris County Prosecutor, 2007-2013)
David J. Bruno, Esq., Partner
Brielle M. Perelli, Esq., Associate Attorney
I have been practicing criminal law for over 25 years. I am certified by the New Jersey Supreme Court as a Certified Criminal Trial Attorney, and have had the honor to serve as the Morris County Prosecutor from 2007-2013.
Now that I have returned to private practice, my law firm has handled a number of cases that involve matrimonial/family law attorneys whose clients, in the context of a divorce, have confronted serious criminal law issues. Surprisingly, this is not an uncommon scenario.
When I was the County Prosecutor, our office handled many cases that originally stemmed from divorce cases. This is because in divorce proceedings, the tension is high and, often times, clients act or react in a manner that proves to be disastrous, exposing themselves to potential criminal charges. Worse yet, many of these scenarios occurred when the client was represented by a matrimonial attorney. Thus, the family law attorney – unaware of their client’s criminal activity – often unknowingly allowed their client to admit to such criminal activity during the divorce proceedings resulting in a host of additional legal problems.
At The Bianchi Law Group, LLC, we have “partnered” with a number of family law firms to advise those attorneys on common criminal law issues interrelated to a client’s divorce matter and have often stepped in to represent the client in connection with the criminal charges that have surfaced during the divorce. Utilizing a skilled criminal defense attorney adds a necessary layer of protection for both the matrimonial attorney and their client. This relationship has been very productive and shown to provide great results.
Many times, and understandably so, matrimonial attorneys are unaware of the existence of potential criminal charges that their client may have committed which are later exposed in certain phases of the divorce litigation (i.e. during discovery). For instance, the exposure of criminal prosecution can result when an attorney allows the production of evidence relating to the criminal activity or allows his client to admit to criminal activity during a deposition, or as a witness on the stand while under oath.
There are various criminal charges that commonly arise in the matrimonial context including, but not limited to, financial fraud, various computer crimes (i.e., unlawfully accessing data, emails, text messages, privacy violations), harassment charges, unlawful use of GPS and computer tracking devices, invasion of privacy concerns, in addition to the common criminal charges such as domestic violence complaints and alleged violations of TRO/FROs. Remarkably, this list is anything but exhaustive.
In fact, in some domestic violence cases that we have tried, the testimony of a spouse stops dead in its tracks when we alert the court – and the testifying witness – that he or she may be admitting to a crime. This very scenario has led to more productive negotiations for resolution and even dismissal of domestic violence matters. This scenario happens frequently and only a skilled criminal trial attorney with knowledge of the criminal law statutes is often able to leverage this knowledge very favorably for a client, or know when a client is falling into the trap and respond before he/she reveals information that seals their fate in the criminal prosecution.
Criminal charges can also arise in the context where a spouse admittedly has violated a previous court order, for instance, a court’s divorce order/decree. Many do not realize that it is a 4th degree crime to violate any court order, even an order issued by a family court judge. Hence, any testimony wherein a client is admitting to such a violation can implicate him or her in a crime.
In summary, there is often a considerable amount of confusion when spotting a criminal law issue, exercising the client’s right to remain silent, as well as, the effect of exercising that right in the context of discovery obligations imposed upon the client in the family law matter.
Recognizing criminal law issues and a rudimentary understanding of the crossover of a family matter into a criminal matter, is a basic and important consideration for any family law attorney who wants to ensure that when pursuing the matrimonial matter, they are not exposing a client to a possible jail sentence. The family law attorney needs to be educated on what issues commonly are in “play” and should routinely consult with a criminal defense attorney for guidance.
Working extensively as former prosecutors in this area of law between family court matters and the crossover into criminal law matters is a “niche” area of law that The Bianchi Law Group, LLC engages in regularly. We are not only available to consult with your clients but, in fact, we encourage meeting with the matrimonial attorney department of the law firms we “partner” with to provide seminars on actual cases, problematic areas to be alerted to and the ability to recognize when a client is in danger of criminal prosecution. “Knowledge is power” and, in this context, it is essential to any matrimonial attorney.
As former prosecutors, we know the “inside game” as to how the prosecution investigates these cases, builds the cases, the types of cases they are interested in, and what is needed for a successful prosecution. We also know and are experienced in the techniques to mitigate the exposure to criminal prosecution.
It is our philosophy that training and establishing a relationship with skilled criminal defense attorneys is a must in today’s world of litigating family court matters.
And as always, “an ounce of prevention” may very well save a client from jail and the attorney from a malpractice claim.
© 2014 Robert A. Bianchi, Esq.