The Bergen County Prosecutor's Office, accused in a civil suit of blowing the cover of confidential informant Frank Lagano, has lost its bid to compel testimony of the lawyer for a detective who induced Lagano to become an informant.

The prosecutors, in Estate of Lagano v. Bergen County Prosecutor's Office, sought to pierce attorney-client privilege and compel testimony from Robert Tandy, a Woodcliff Lake attorney who represented James Sweeney. The suit on behalf of Lagano's estate claims the failure by the prosecutor's office to protect Lagano's status as an informant from disclosure was the proximate cause of his death.

U.S. District Judge Faith Hochberg of the District of New Jersey dismissed the case in 2013, but the U.S. Court of Appeals for the Third Circuit reversed that ruling and remanded the case in 2014.

The suit claims that disclosure of Lagano's status as an informant established a state-created danger in violation of his due process rights. The Third Circuit said the prosecutor's office and Michael Mordaga, a co-defendant in the suit and the former chief of detectives for the office, are subject to claims under state and federal civil rights laws, because each met the definition of a “person” under those laws. Hochberg had dismissed the suit after finding Mordaga and the prosecutor's office were not persons under those laws.

The BCPO claimed that Tandy waived his attorney-client privilege in 2010 when Sweeney filed his own suit against the Attorney General's Office relating to some of the same events as the Lagano case. The complaint in the Sweeney suit “served as the template for the complaint in this case,” the BCPO claims.

By filing the complaint, Sweeney, if he were still alive, would have had to answer deposition questions about the individual allegations in the complaint, prosecutors argued. Tandy therefore should answer any questions about the allegations in Sweeney's complaint and serve on the court any documents he obtained relating to that complaint.

The attorney representing the prosecutors' office cited a 1991 decision from the Third Circuit, Westinghouse Electric v. Republic of Philippines, which holds that “communications made with the intent that they be disclosed to third parties, or that actually are so disclosed, fall outside the attorney-client privilege.”

But U.S. Magistrate Judge Cathy Waldor rejected the argument by the prosecutor's office, saying that no court “has construed the filing of a complaint as a blanket waiver for all communications between an attorney and his or her client. Rather as outlined herein, if a complaint makes specific allegations about what an attorney has said or heard that puts the attorney's deposition at issue as a fact witness.”

Lagano was shot and killed in 2007 in front of the East Brunswick diner he owned. No arrests have been made.

Sweeney, an investigator for the Attorney General's Office, claimed in a 2010 suit that he was fired from his job for reports he made to superiors about Lagano's killing. Sweeney died in 2011 and his suit was voluntarily dismissed.

The suit on behalf of Lagano's estate claims the failure by the prosecutor's office to protect Lagano's status as an informant from disclosure was the proximate cause of his death.

The suit on behalf of Lagano was filed by William Buckman, the Moorestown, New Jersey, attorney who is best known for calling attention to the practice of racial profiling by state police in State v. Soto, which claimed that troopers decided which vehicles to pull over based solely on defendants' race. Buckman's 2014 death was termed a suicide.

The lawyer for the Bergen County Prosecutor's Office, John Bowens of Schenck, Price, Smith & King in Florham Park, New Jersey, and Eric Kleiner, of Englewood Cliffs, New Jersey, who now represents Lagano's estate, did not return calls. Tandy, the late Sweeney's counsel, also did not return a call about the ruling.