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New Hampshire DOC Union Representative Ordered to Reveal Client Admissions

An unnamed New Hampshire Department of Corrections (DOC) union representative (petitioner) appealed a court's refusal to quash a subpoena requiring him to testify before a grand jury. The state Supreme Court denied his appeal and ordered that he reveal statements made to him in confidence by his client, a union member.

The petitioner represented a DOC social worker who was accused of bringing contraband into a prison. His client was informed of his rights pursuant to Garrity v. New Jersey, 385 U.S. 493, 500 (1967), which held that "statements given under threat of discharge ... are compelled and may not be used in subsequent criminal proceedings" by the DOC. The petitioner was later subpoenaed by the state to reveal his client's statements.

He moved to quash the subpoena, claiming there was a communication protection privilege between a union representative and a grievant. He further argued that the subpoena violated state and federal constitution contract clauses. The motion was denied and he appealed. After his opening brief was filed and not until oral argument did he claim violation of his client's Garrity rights.

The Supreme Court of New Hampshire denied his Garrity claim for failure to raise it in the trial court or to brief that issue. The Court held that his client's Garrity claim, raised in a motion to intervene, was a separate proceeding and did not apply to the appeal. Because no case law was submitted to support the privilege claim, the Court refused to create a new common law exception. Further, the Court found no contract clause violation, and noted that no substantial relationship between union representatives and employees had been shown that would justify a loss of evidence to the detriment of the administration of justice. See: In re Grand Jury Subpoena, 155 N.H. 557, 926 A.2d 280 (N.H., 2007).

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Related legal case

In re Grand Jury Subpoena