Lawyer-Client Email Held Privileged Despite Its Release to a Third Party
A communique between a college coach and the school's general counsel did not lose its lawyer-client privilege even though the coach shared it with the NCAA, a New Jersey appeals court says.
The coach had no authority to waive the privilege because the college itself was the client, the Superior Court Appellate Division held Thursday in Hedden v. Kean University, a precedential ruling.
Former Kean University athletic director Glenn Hedden, who was fired after reporting team fundraising violations, sought to bolster his whistleblower suit with a January 2010 email from women's basketball coach Michele Sharp to general counsel Michael Tripodi. It attached a draft fundraising letter for a team trip to Spain that August, saying simply, "Please let me know if it is worded ok."
The trip was offered as a credited course called "History of Spain" and made available only to current and former basketball players—violating National Collegiate Athletic Association rules against player compensation.
Hedden was not cc'd on the email and claims he didn't find out about the trip until after it was over.
He subsequently reported it and other suspected violations to the NCAA. In the ensuing investigation, Sharp, through her personal counsel, produced the email to the NCAA.
Hedden was terminated in May 2011, purportedly for failure to supervise the basketball program.
But in April 2012, the NCAA substantiated Hedden's misconduct claims and issued severe sanctions, including four years' probation for the university's entire athletic program.
In Hedden's whistleblower suit, Union County Superior Court Judge Karen Cassidy held the privilege waived upon release of the email to the NCAA.
The divided appeals court reversed. Judges Anthony Parrillo and Jonathan Harris found that Sharp's purpose in sending the email was to solicit legal advice from Tripodi, who would have no other reason to become involved.
Parrillo wrote for the majority that only officers or directors can waive privilege on behalf of the university.
"Simply put, the authority to waive the attorney-client privilege does not belong to each and every employee of the corporation, but rather is held by the organizational client, namely the officers and directors," he said.
Sharp "does not fit within this category" and "was not acting under the direction of the University when she released the document to the NCAA."
Parrillo said it wasn't necessary for the university to object to the disclosure at the time to preserve the privilege.
Judge Michael Guadagno dissented, saying the email evidently was sent to garner support for the trip, not to seek legal advice, and any privilege was waived when the university withheld objection to its production to the NCAA.
He said the majority "ignores the clear content of the email and assumes that all communications with someone in Tripodi's position must be made for the purpose of seeking legal advice."
The university asserted no privilege until February 2013, when Hedden requested it in discovery but until then benefited from publication in its effort to avoid sanctions, he added.
The privilege "should not be the subject of such arbitrary, selective, and opportunistic enforcement and cannot be doffed and donned like a raincoat on a cloudy day," he wrote.
Hedden's lawyer, David Corrigan of the Corrigan Law Firm in Keyport, says he's reviewing options. Under R. 2:2-5, a judgment of the Appellate Division on appeal from an interlocutory order is generally not reviewable by the Supreme Court, though the court may grant leave to appeal.
"We have a good case with or without the email, but it's certainly going to help us," he says. "My concern is, from this decision, [if] you want to do an interagency communication, cc: the lawyer…and how am I going to prove that it's not for the purpose of legal advice? The attorney-client privilege is important, but so is the need for relevant information."
Dominick Carmagnola, a management-side employment lawyer not involved in the case, says the decision "expands the footprint a little bit and gives a little greater coverage to the privilege."
"There's a lot of layers in these institutions, and you can't have one person … controlling the privilege and in fact waiving it when there was no notice to the university," he says.
Even if the document sought has been used in a public forum, "you can still assert that privilege and put the cloak back over it," says Carmagnola, of Carmagnola & Ritardi in Morristown.
Kean University's lawyer, Michael Dee of Morristown's McElroy, Deutsch, Mulvaney & Carpenter, declines comment. Kean spokeswoman Emily Renkert did not respond to a reporter's email seeking comment Thursday. •