Glenn Hedden v. Kean University ( 2013 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4999-12T2
GLENN HEDDEN
APPROVED FOR PUBLICATION
Plaintiff-Respondent, October 24, 2013
v. APPELLATE DIVISION
KEAN UNIVERSITY, MATTHEW CARUSO
and PHILIP CONNELLY,
Defendants-Appellants.
Argued September 23, 2013 - Decided October 24, 2013
Before Judges Parrillo, Harris and Guadagno.
On appeal from an Interlocutory Order of the
Superior Court of New Jersey, Law Division,
Union County, Docket No. L-2278-11.
Michael J. Dee argued the cause for
appellants (McElroy, Deutsch, Mulvaney &
Carpenter, LLP, attorneys; John J. Peirano,
of counsel; Mr. Dee and Melanie D.
Lipomanis, on the brief).
David F. Corrigan argued the cause for
respondent (The Corrigan Law Firm,
attorneys; Mr. Corrigan, of counsel; Mr.
Corrigan and Bradley D. Tishman, on the
brief).
The opinion of the court was delivered by
PARRILLO P.J.A.D.
We granted leave to appeal an interlocutory order of the
Law Division compelling production of an e-mail sent by the head
women's basketball coach at Kean University to the University's
general counsel, that the University claims is protected by the
attorney-client privilege. For reasons that follow, we reverse.
Briefly by way of background, plaintiff Glenn Hedden is the
University's former athletic director. In that capacity, he
supervised Michele Sharp, who was the head women's basketball
coach at the University. Plaintiff was terminated on May 2,
2011, supposedly for failure to properly supervise subordinates
in the athletic program, which in turn led to the University
being sanctioned by the National Collegiate Athletic Association
(NCAA) for violations of NCAA rules in connection with its
women's basketball program. Plaintiff responded by filing a
complaint against the University1, alleging wrongful termination
in violation of the Conscientious Employee Protection Act,
N.J.S.A. 34:19-1 to -14 (CEPA), for reporting those violations
to the NCAA, and defamation.
The incident giving rise to the NCAA action concerned
Sharp's efforts in 2010 to organize a summer trip to Spain for
1
Also named in the complaint as defendants were Philip Connelly,
the University's executive vice president of general operations,
and Matthew Caruso, the University's director of media
relations.
2 A-4999-12T2
her basketball team. There was both an educational and athletic
component to the tour, as the student-athletes would be
developing their skills as basketball players as well as earning
three credits in a Spanish history course. To defray the cost
of the trip, Sharp drafted fundraising correspondence to
potential donors, requesting their sponsorship. Before
releasing it, however, on January 29, 2010, Sharp sent an e-mail
with the fundraising letter attached to Michael Tripodi, the
University's general counsel, requesting his review. Tripodi
apparently responded orally to Sharp.
According to plaintiff, it was not until the Fall 2010,
well after the team returned from Spain, that he first became
aware of possible violations of NCAA regulations associated with
the trip, particularly its funding and academic course aspects.
After he conducted an internal investigation, plaintiff
contacted the NCAA to report the violations uncovered.
Consequently, the NCAA launched its own confidential
investigation, as a result of which the entity issued a Notice
of Allegations to both Sharp and the University, requesting a
response from each. Sharp retained her own attorney to
represent her in the NCAA matter, and as part of her January 23,
2012 response, produced, through counsel, her January 29, 2010
e-mail to Tripodi, which is at the core of the controversy in
3 A-4999-12T2
this appeal.2 Although the University received a copy of Sharp's
submission to the NCAA, it claims it was never consulted
beforehand and did not authorize disclosure of the disputed e-
mail. Neither, however, did the University object to its
release to the NCAA or assert any privilege attaching to the
document, until, that is, the present litigation.
During discovery, plaintiff requested production of, among
other things, the January 29, 2010 e-mail from Sharp to Tripodi.
The University refused, asserting the e-mail was protected from
disclosure by the attorney-client privilege because it was sent
to counsel for the purpose of obtaining legal advice. Plaintiff
disagreed, contending the e-mail was not contained in a
privilege log and, in any event, the privilege was waived by
Sharp's disclosure of the e-mail to the NCAA without the
University's objection. The University countered that there was
no waiver of the privilege because Sharp was not authorized by
her employer — the actual holder of the privilege — to waive the
privilege on its behalf.
Unable to resolve the matter, plaintiff moved to compel
production of the disputed e-mail. In granting the requested
2
Sharp's response to the NCAA indicated that the e-mail may
concern plaintiff's alleged refusal to discuss with her the
Spanish course and financing for the term's trip to Europe.
4 A-4999-12T2
relief, after reviewing the e-mail in camera,3 the motion judge
found that defendant failed to prove Sharp's purpose in sending
the e-mail was to obtain legal advice and that, in any event, as
holder of the privilege, Sharp's submission of the e-mail to the
NCAA constituted a waiver.
On their motion for reconsideration, defendants submitted
the certification of Tripodi attesting to his understanding that
the purpose of Sharp's e-mail was to obtain legal advice and, as
a result, he rendered legal advice to Sharp. Tripodi further
certified that "employees at the direction of those in the
management ranks often come to me for the purpose of obtaining
legal advice on various matters concerning the University[,]"
and that he reviewed Sharp's letter to "ensure that external
3
Concerning the disputed item, the motion judge commented:
Here, both the e-mail and the
attachment are relevant to the plaintiff's
C.E.P.A. claim since the content of the e-
mail corroborates, to some degree, the
plaintiff's claim that Michele Sharp worked
with several high level officials to arrange
the trip without notifying the plaintiff.
Plaintiff makes this allegation in ¶ 11 of
his Complaint. In addition, upon reviewing
the content of the attachment, which is a
letter addressed to a blank recipient and is
signed by Sharp, it is clear the letter was
intended to be used to generate financial
support or seek donations from recipients of
the letter to help defray the cost of the
trip for students on the basketball team.
5 A-4999-12T2
communications sent by a University employee in his or her
official capacity do not improperly purport to bind or commit
the University to future conduct."
Accepting the Tripodi certification, the motion judge found
that there was an attorney-client relationship between Sharp and
Tripodi, but nevertheless reaffirmed her earlier ruling that the
privilege had been waived upon Sharp's disclosure of the e-mail
to the NCAA. Rejecting defendants' position that Sharp was not
acting within the scope of her authority upon such disclosure,
the motion judge reasoned:
However, in this context the court
finds that Sharp's disclosure to [the]
N.C.A.A. waived the privilege because it
appears from all the evidence provided to
the court, that not only was Sharp's
submission consistent with upper
management's position regarding the
allegations on the financial benefit, but
[defendants'] failure to demonstrate the
University's contrary position on this issue
renders their argument specious.
Additionally, [defendants] did not seek to
prevent disclosure of the e-mail based on
the privilege to the N.C.A.A. or take any
action after it was disclosed to prevent any
consideration of the material contained
therein.
On appeal, defendants essentially argue, as they did below,
that Sharp was not authorized by the University, as holder of
the attorney-client privilege, to waive its protection. We
agree.
6 A-4999-12T2
We start with some basic principles that govern our
disposition of the matter. First, we "normally defer to a trial
court's disposition of discovery matters . . . unless the court
has abused its discretion[,]" or the decision is based on "a
mistaken understanding of the applicable law." Payton v. N.J.
Tpk. Auth., 148 N.J. 524, 559 (1997). Because "[a] trial
court's interpretation of the law and the legal
consequences that flow from established facts are not entitled
to any special deference[,]" Manalapan Realty v. Manalapan Twp.
Comm., 140 N.J. 366, 378 (1995), we review the applicability of
the attorney-client privilege, and its potential waiver in this
case, de novo.
It is well-settled under New Jersey law that communications
between lawyers and clients "in the course of that relationship
and in professional confidence" are privileged and therefore
protected from disclosure. N.J.S.A. 2A:84A-20(1); N.J.R.E.
504(1). Specifically, the attorney-client privilege generally
applies to communications (1) in which legal advice is sought,
(2) from an attorney acting in his capacity as a legal advisor,
(3) and the communication is made in confidence, (4) by the
client. See Metasalts Corp. v. Weiss, 76 N.J. Super. 291, 297
(Ch. Div. 1962).
7 A-4999-12T2
The attorney-client privilege "recognizes that sound legal
advice or advocacy serves public ends and rests on the need to
'encourage full and frank communication between attorneys and
their clients.'" United Jersey Bank v. Wolosoff, 196 N.J.
Super. 553, 561 (App. Div. 1984) (quoting Upjohn Co. v. United
States, 449 U.S. 383, 389, 101 S. Ct. 677, 682, 66 L. Ed. 2d
584, 591 (1981)). "'Preserving the sanctity of confidentiality
of a client's disclosures to his attorney [promotes] an open
atmosphere of trust.'" United Jersey Bank, supra, 196 N.J.
Super. at 561 (quoting Reardon v. Marlayne, 83 N.J. 460, 470
(1980)). Accordingly, "the confidentiality of communications
between client and attorney constitutes an indispensable
ingredient of our legal system." In re Grand Jury Subpoenas
Duces Tecum, 241 N.J. Super. 18, 27-28 (App. Div. 1989).
The benefit of the attorney-client privilege extends to a
corporation or other organization or association, "which must
act through agents, including [its] officers and employees."
United Jersey Bank, supra, 196 N.J. Super. at 562 (quoting Macey
v. Rollins Envtl. Servs. (N.J.), 179 N.J. Super. 535, 540 (App.
Div. 1981)); see also Payton, supra, 148 N.J. at 550; N.J.S.A.
2A:84A-20(3) (defining client as "a person or corporation . . .
that, directly or through an authorized representative, consults
a lawyer . . . for the purpose of . . . securing legal service
8 A-4999-12T2
or advice from him in his professional capacity"); N.J.R.E.
504(3) (same). The privilege, therefore, belongs to the
institution and covers confidential communications between the
entity's attorneys and its employees. Upjohn, supra, 449 U.S.
at 395, 101 S. Ct. at 685, 66 L. Ed. 2d at 594-95.
In Upjohn, supra, the Supreme Court held that
communications made by mid or low-level employees within the
scope of their employment to the corporation's attorney for the
purposes of aiding counsel in providing legal advice were
protected by attorney-client privilege. 449 U.S. at 391, 101 S.
Ct. at 683, 66 L. Ed. 2d at 592. Indeed, "[t]he necessity for
full and open disclosure between corporate employees and in-
house counsel . . . demands that all confidential communications
be exempt from discovery." Macey, supra, 179 N.J. Super. at
540. This even includes an e-mail communication between
attorney and client during the course of a professional
relationship and in confidence. Seacoast Builders Corp. v.
Rutgers, 358 N.J. Super. 524, 553 (App. Div. 2003).
To be sure, while the attorney-client privilege is "clearly
extremely important," it is neither absolute nor sacrosanct.
Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E.
504(3). Because the privilege results in the suppression of
evidence, it "is to be strictly limited to the purposes for
9 A-4999-12T2
which it exists, i.e., the need for consultation between
attorney and client without fear of public disclosure." State
v. Humphreys, 89 N.J. Super. 322, 325 (App. Div. 1965).
However, "[w]here the privilege is applicable, 'it must be given
as broad a scope as its rationale requires.'" United Jersey
Bank. supra, 196 N.J. Super. at 561 (quoting Eversun v. Bank of
N.Y., 99 N.J. Super. 162, 168 (App. Div.), certif. denied, 51
N.J. 394 (1968)). And while the burden of proof is on the
person or entity asserting the privilege to show its
applicability in any given case, L.J. v. J.B., 150 N.J. Super.
373, 378 (App. Div.), certif. denied sub nom. Jacobsen v. Balle,
75 N.J. 24 (1977), there is a presumption that a communication
made in the lawyer-client relationship has been made in
professional confidence. N.J.R.E. 504(3); see also Hannan v.
St. Joseph's Hosp. & Med. Ctr., 318 N.J. Super. 22, 28 (App.
Div. 1999); State v. Schubert, 235 N.J. Super. 212, 220-21 (App.
Div. 1989), certif. denied, 121 N.J. 597, cert. denied, 496 U.S.
911, 110 S. Ct. 2600, 110 L. Ed. 2d 280 (1990).
One of the key issues regarding the applicability of the
privilege in this case is the purpose of Sharp's e-mail to
Tripodi. If the purpose was to solicit legal advice, then the
privilege applies. However, if Sharp's ultimate goal was to
secure business advice or other non-legal services, then the
10 A-4999-12T2
privilege does not apply. See United States v. Rockwell, Int'l,
897 F.2d 1255, 1264 (3d Cir. 1990).
In this regard, we agree with the motion judge that as an
employee of the University and acting within the scope of her
employment, Sharp's purpose in sending the e-mail to Tripodi was
to solicit his legal advice as University general counsel and,
thus, an attorney-client relationship was formed. It is
undisputed that in the e-mail Sharp asks Tripodi to review a
draft of a fundraising letter and there would be no plausible
reason for the request other than to solicit legal advice from
counsel since Tripodi had no other involvement in University
fundraising activities. In fact, in his capacity as general
counsel and in the course of his employment, "it [was] not
unusual for [Tripodi] to review documents relating to
fundraising activities on behalf of the University" to ensure
that those activities "[complied] with any applicable state and
federal laws and regulations" and did not "improperly purport to
bind or commit the University to future conduct." And while
there was no certification from Sharp attesting to her purpose
in sending the e-mail, Tripodi well understood the nature of the
inquiry because he reviewed the letter and later "conveyed [his]
legal opinion regarding the letter." Plaintiff's intimation to
the contrary, that Sharp was seeking advice from Tripodi "merely
11 A-4999-12T2
as a representative of Kean University" and not in his legal
capacity, has no support in the record. The fact that Tripodi
had no involvement in fundraising other than reviewing such
solicitations to provide legal advice, and actually rendered
such a service in this very instance, belies the naked
suggestion that the e-mail was sent for some other, non-legal
purpose. Clearly Sharp sent the e-mail to Tripodi because its
contents could bind the University and the communication would
not have been made but for Sharp's need for legal advice or
services.
Equally clear is that as head women's basketball coach,
Sharp was acting within the scope of her employment when
soliciting legal advice from University counsel and,
furthermore, that her communication to him was made in
confidence. Confidential communications are those
"communications which the client either expressly made
confidential or which he could reasonably assume under the
circumstances would be understood by the attorney as so
intended." State v. Schubert, supra, 235 N.J. Super. at 221.
Furthermore, confidential communications may be disclosed to a
non-client or non-party who shares the client's interest,
without surrendering confidentiality. See In re State Comm'n of
Investigation Subpoena No. 5441, 226 N.J. Super. 461, 466-67
12 A-4999-12T2
(App. Div.), certif. denied, 113 N.J. 382 (1988). In this case,
Sharp had a reasonable expectation of confidentiality since the
document was sent internally to Tripodi, in his capacity as
university counsel. Contrary to the dissent's view, the fact
that another University employee may have been copied on the
email does not defeat its confidential nature because as a
fellow employee with an interest in the matter, he shared
Sharp's interest in protecting the University from liability.
See Mead Data Ctr., Inc. v. U.S. Dep't of the Air Force, 566
F.2d 242, 253 n.24 (D.C. Cir. 1977) (noting that communications
circulated among more than one employee of the client can still
be confidential as long as those employees are authorized to act
for the corporation in relation to the subject matter of the
communication); cf. Coastal States Gas Corp. v. Dep't of Energy,
617 F.2d 854, 863-64 (D.C. Cir. 1980) (holding that distributing
a memo widely within an agency defeated the privilege but noting
that "[w]hen the client is by nature a group, as is true of
. . . corporations, the courts have agreed that the privilege
should not be defeated by some limited circulation beyond the
attorney and the person within the group who requested the
advice" and advising that if disclosure had been limited to
personnel responsible for the matter at issue, "[the court]
would have a different case."). See also Murphy v. Tenn. Valley
13 A-4999-12T2
Auth., 571 F. Supp. 502, 506 (D.D.C. 1983) (holding that an
employee's communications to general counsel requesting legal
advice remained confidential even though they were distributed
to other employees involved in the matter because "such limited
dissemination does not amount to a breach of confidentiality in
the corporate attorney-client context"); L.S.B. Indus., Inc. v.
Comm'r, 556 F. Supp. 40, 44 (W.D. Okla. 1982) (holding that
attorney-client privilege was not waived when a letter sent by
an IRS regional counsel to the DOJ, requesting legal services,
was copied to other IRS personnel involved in the
investigation).
The closer question is whether the University waived the
attorney-client privilege upon Sharp's disclosure of the e-mail
to the NCAA. In this regard, N.J.S.A. 2A:84A-29 (N.J.R.E. 530)
addresses waiver and provides in part:
A person waives his right or privilege
to refuse to disclose or to prevent another
from disclosing a specified matter if he or
any other person while the holder thereof
has (a) contracted with anyone not to claim
the right or privilege or, (b) without
coercion and with knowledge of his right or
privilege, made disclosure of any part of
the privileged matter or consented to such a
disclosure made by anyone.
The privilege, of course, can be waived only by the client and
not the lawyer. Sicpa N. Am., Inc. v. Donaldson Enters., 179
N.J. Super. 56, 60-61 (Law Div. 1981).
14 A-4999-12T2
Generally, once privileged material is disclosed, the
privilege of non-disclosure is waived as to that matter. See In
re Grand Jury Subpoenas Issued, 389 N.J. Super. 281, 298 (App.
Div. 2006). Not all disclosures, however, amount to waivers.
For example, an unauthorized disclosure by someone who is not
the holder of the privilege does not generally constitute a
waiver. In re Grand Jury Subpoenas Duces Tecum, supra, 241 N.J.
Super. at 31; In re Nackson, 221 N.J. Super. 187, 191 (App. Div.
1987), aff’d, 114 N.J. 527 (1989).
Here, the motion judge found, without further explication,
that "[f]rom the facts submitted as part of this motion it would
appear that Sharp, as holder of the privilege, also had the
capacity to waive the privilege." We disagree. In the
organizational context, where the corporate employee
communicates with corporate counsel on behalf of the entity, the
corporation is the client. Upjohn, supra, 449 U.S. at 390, 101
S. Ct. at 683, 66 L. Ed. 2d at 591-92. 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 of the organization. Commodity Futures Trading Co. v.
Weintraub, 471 U.S. 343, 348, 105 S. Ct. 1986, 1991, 85 L. Ed.
2d 372, 378 (1985); United States v. Doe, 219 F.3d 175, 184-85
15 A-4999-12T2
(2d Cir. 2000). Thus, the group of individuals who may waive
the privilege on behalf of the organizational client is
restricted to those who manage or control its activities.
Sharp does not fit within this category as she was neither
a director nor officer of the University, nor did she serve in a
management capacity. Moreover, Sharp was not acting under the
direction of the University when she released the document to
the NCAA, producing it through her own counsel on her own
behalf, in response to an inquiry directed specifically to her
by the NCAA. Thus, as Sharp was not the holder of the attorney-
client privilege, it was not hers to waive.
The motion judgment nevertheless found Sharp had implied
authorization to disclose the e-mail because the University
shared a common interest in its release and failed to object at
the time of its production, amounting to a de facto waiver of
the privilege. We again disagree.
Obviously, since the attorney-client privilege can only
apply to a corporation through the statements of its agents,
conversely it can be waived by the agent but only if acting
within the scope of her authority and official duties. On this
score, we emphasize that the University neither directed nor
approved Sharp's release of the e-mail. When she submitted the
document to the NCAA, Sharp was not acting within the scope of
16 A-4999-12T2
her employment or official duties, but rather in her own
personal interest, through her own counsel. She did not seek
prior authorization from the University and in fact failed to
consult or notify her employer in advance of copying the
University on her submission, presumably simultaneously with its
filing. The fact that the University did not voice an objection
at the time or take affirmative steps to reverse Sharp's
unilateral action does not defeat assertion of the privilege by
its true holder.
We have previously found that a disclosure of a privileged
communication by another party was not authorized even when the
client did not object to the disclosure at the time it occurred.
In re Grand Jury Subpoena Duces Tecum, 241 N.J. Super. at 31;
see also Stewart Equipment Co. v. Gallo, 32 N.J. Super. 15 (Law
Div. 1954) (holding that a disclosure by a vice president and
sales manager of a corporation did not constitute waiver because
he did not seek authorization from the board of directors); Doe,
supra, 219 F.3d at 189-90 (suggesting that disclosure by a low
level employee testifying during a grand jury proceeding may not
constitute waiver when that employee was appearing in his
individual capacity, and it was not clear whether the waiver was
intentional). Similarly here, under these circumstances, where
Sharp was clearly not acting as the University's agent or with
17 A-4999-12T2
its express authorization, we do not deem her disclosure to the
NCAA to be a waiver under N.J.R.E. 530 and N.J.S.A. 2A:84A-29.
Lastly, the motion judge, assuming the existence of the
privilege, seemed to imply that it should otherwise be pierced
because plaintiff made a showing of need, relevance and
materiality, and the fact that the information could not be
secured from any less intrusive source, citing In re Kozlov, 79
N.J. 232, 243-44 (1979).4 Kozlov's privilege-piercing analysis,
however, has been severely curtailed and its general
applicability discarded. See State v. Mauti, 208 N.J. 519, 537-
39 (2012). Kozlov's three-part balancing test is now "restricted
. . . to instances where constitutional rights are at stake,
notably in the criminal law context." Biunno, Current N.J. Rules
of Evidence, supra, comment 6 on N.J.R.E. 504. Here, there are no
constitutional rights or overriding public policy or societal
concerns to which the attorney-client privilege should yield. We
therefore find the attorney-client privilege has not been waived in
this instance and therefore exists to protect the disputed e-mail
from disclosure.
Reversed and remanded.
4
In In re Kozlov, supra, our Supreme Court defined the "necessary
foundations to the valid piercing of [the attorney-client]
privilege. . . ." There must be: (1) a legitimate need of the
party to reach the evidence sought to be privileged; (2) a showing
of relevance and materiality; and (3) the information cannot be
secured from any less intrusive source. Id. at 243-44.
18 A-4999-12T2
GUADAGNO, J.A.D., dissenting
Because I believe the email in question was not sent by
Michele Sharp for the purpose of seeking legal advice, I
respectfully dissent from the conclusion reached by the majority
that the email is protected by the attorney-client privilege.
Moreover, any privilege that may have attached to the email was
waived when Sharp submitted it to the NCAA without any objection
from Kean University.
Some additional facts, not contained in the majority
opinion, inform my decision. Glenn Hedden maintains that he
first learned about the course entitled "History of Spain" on
November 22, 2010, when a Kean mathematics professor informed
him that a member of the women's basketball team was not taking
a sufficient number of credits to maintain her eligibility.1
Hedden checked the student's records and learned that her
schedule contained an "added course" entitled "History of
Spain." Further investigation by Hedden revealed that only nine
students enrolled in the course and all were present or former
members of the women's basketball team. Although the trip to
Spain took place in late August 2010, the course offering did
not appear on the University's registration system until
1
Sharp maintains that she attempted to discuss the trip with
Hedden but he failed to respond to her request for guidance.
September 22, 2010, well after the fall semester had commenced,
precluding the general student body from enrolling.
Convinced that the course violated both University
regulations and NCAA guidelines, Hedden reported the violation
to the NCAA.
In February 2011, Hedden filed a second report with the
NCAA detailing how grades for a different player on the women's
basketball team had been changed to ensure her continued
academic eligibility. The player failed a course but the "F"
was changed to "incomplete," and she remained eligible. When
Hedden questioned the professor, the grade was changed back to
"F." Then, another professor, the same one who taught the
"History of Spain" course, changed the player's Spanish grade
from a C+ to a B+, which kept her GPA above 2.0 and maintained
her eligibility.
On May 2, 2011, the University terminated Hedden's
contract. Among the reasons given for Hedden's discharge, was
his failure to provide adequate supervision of the women's
basketball program. The University cited Hedden's failure to
take immediate action against the student athlete regarding her
eligibility and his failure "to timely notify his supervisor of
. . . possible NCAA violations . . . regarding the women's
basketball summer 2011 Spain/France tour."
2
The NCAA opened an investigation, filed a complaint, and
requested that Kean and Sharp provide responses to the
allegations. Sharp retained counsel to represent her in the
investigation.
Included in Sharp's response to the NCAA was an email she
wrote on January 29, 2010, to Kean's General Counsel, Michael
Tripodi, which was copied to Philip Connelly, Kean's Executive
Vice-President of Operations and Hedden's immediate supervisor.
Sharp's email contained an attached draft of a fundraising
letter she intended to distribute to raise money for the trip to
Spain. Sharp's only request to Tripodi was simply to review the
draft letter. Nothing in her three-sentence email suggests she
was seeking legal advice from Tripodi. Tripodi claims that he
reviewed the letter and gave Sharp a verbal response.
The attorney-client privilege, which is codified at
N.J.S.A. 2A:84A-20 and appears in N.J.R.E. 504, provides that
"communications between lawyer and his client in the course of
that relationship and in professional confidence, are
privileged[.]" The privilege is restricted to "[c]onfidential
disclosures by a client to an attorney made in order to obtain
legal assistance . . . ." Fisher v. United States, 425 U.S.
391, 403, 96 S. Ct. 1569, 1577, 48 L. Ed. 2d 39, 51 (1976).
Before the privilege can be recognized, it is "vital to the
3
privilege . . . that the communication be made in confidence for
the purpose of obtaining legal advice from the lawyer." United
States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961).
Sharp's email meets neither of these criteria. It does not
expressly seek legal advice and nothing in the simply and
briefly worded message can be reasonably interpreted, in my
view, as doing so. Moreover, Sharp's act of copying Connelly,
who was not a member of the University's legal department, is an
indication that she did not intend that her communication with
Tripodi would be confidential.2 There is no support in the
record for the conclusion that either party had a reasonable
expectation that the email would remain confidential.
The purpose of the email appears more in the nature of a
request for permission to fundraise, than an appeal for legal
advice. Sharp was also seeking approval and placing the
University on notice of a trip/course offering that was sure to
generate controversy. This conclusion finds support in Sharp's
statement to the NCAA where she indicates that she only went to
Tripodi when she could not get a response from plaintiff:
2
The majority notes that Sharp's act of copying Connelly on her
email does not, standing alone, defeat the privilege. Ante at
_____ (slip op. at ____). I agree. However, copying Connelly,
Hedden's supervisor, is another indication that Sharp was not
seeking confidential legal advice from Tripodi, but permission
for the trip to Spain, and she only contacted Tripodi and
Connelly when she was unable to discuss the trip with Hedden.
4
As a result of Hedden's refusal to discuss
the course idea and provide any help or
suggestions with generating financial
support for the trip with Sharp, Sharp
communicated with Kean General Counsel Mike
Tripodi ("Tripodi") and Kean Executive Vice
President for Operations Phil Connelly
("Connelly") by email on January 29, 2010.
Sharp's response does not support Tripodi's claim that he
"conveyed [his] legal opinion regarding the letter." Rather,
Sharp indicates that her "memo resulted in Connelly contacting
[her] and offering his support for her project." This confirms
that through her email Sharp sought and received University
support for the trip to Spain, not legal advice.
The conclusion of the majority that "there would be no
plausible reason for [Sharp's] request other than to solicit
legal advice," 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 case law analyzing the attorney-client privilege does not
support such a broad interpretation.
"'[D]ocuments do not become cloaked with the lawyer-client
privilege merely by the fact of their being passed from client
to lawyer.'" Tractenberg v. Twp. of W. Orange, 416 N.J. Super.
354, 376 (App. Div. 2010) (quoting United States v. Robinson,
121 F.3d 971, 975 (5th Cir. 1997), cert. denied, 522 U.S. 1065,
118 S. Ct. 731, 139 L. Ed. 2d 669 (1998)). "Communications
5
which relate to business rather than legal matters do not fall
within the protection of the privilege[,]" Leonen v. Johns-
Mansville, 135 F.R.D. 94, 98 (D.N.J. 1990)), and, therefore,
"the general rule is 'while legal advice given to a client by an
attorney is protected by the privilege, business advice
generally is not.'" La. Mun. Police Emps. Ret. Sys. v. Sealed
Air Corp., 253 F.R.D. 300, 305 (quoting In re Nat'l Smelting of
N.J., Inc. Bondholders' Litig., 1989 U.S. Dist. LEXIS 16962, at
*18 (D.N.J. June 29, 1989)); see also United States v. Davis,
636 F.2d 1028, 1043 (5th Cir.) (communications made to an
attorney to prepare a tax return were not privileged because
such work is primarily an accounting service), cert. denied, 454
U.S. 862, 102 S. Ct. 320, 70 L. Ed. 2d 162 (1981).
Nor, am I convinced that Tripodi's certification provides
proof that Sharp was seeking legal advice. Placed in context,
the certification was submitted only after the motion judge
noted that
the email does not expressly indicate that
general counsel's review was for the purpose
of obtaining legal advice. In addition, the
[d]efendants did not attach a certification
from Mr. Tripodi or Ms. Sharp indicating and
certifying to their personal knowledge
concerning the purpose of the email.
Defendants' motion for reconsideration relied on Tripodi's
certification, in which he stated, "I understood from Ms.
6
Sharp's January 29, 2010 email that, in her official capacity as
the Women's Basketball coach, she wanted me to review the draft
letter and confirm whether any legal issues were implicated."
However, Sharp's email makes no such request and her response to
the NCAA flatly contradicts this assertion. Sharp confirms that
her email resulted in Connelly contacting her and scheduling a
follow-up meeting to discuss the trip to Spain.3 Sharp gives no
indication that she received any response from Tripodi.
Nothing in Sharp's three-sentence email supports Tripodi's
claim that she was seeking legal advice. This conclusion is
reinforced by the University's failure to object when Sharp
enclosed the email in her January 23, 2012, response to the NCAA
Notice of Allegations. In his certification, Tripodi
acknowledges that he received a copy of Sharp's response to the
NCAA containing the January 29, 2010 email on January 25, 2012.
He now claims that Sharp was not acting in her official capacity
as an employee of the University when she disclosed the email to
the NCAA and her disclosure "was not authorized by the holder of
the privilege, the University." However, there was no assertion
of the attorney-client privilege by the University until
February 13, 2013, more than one year after Sharp's disclosure
to the NCAA. Not until plaintiff requested a copy of the
3
This meeting on February 18, 2010, was not attended by Tripodi.
7
email, which had been redacted from a discovery response, did
the University assert a claim of attorney-client privilege to
prevent plaintiff's discovery of the email.
Tripodi does not explain why the University sat idly by
when a purportedly privileged document was disclosed to the
NCAA, but reacted swiftly and emphatically when Hedden sought a
copy of the email. Nor does he explain how Sharp was acting in
her official capacity when she sent the email to him but was not
acting in that capacity when she responded to the NCAA. Had the
University truly been concerned with Sharp's "unauthorized"
disclosure of a privileged document to the NCAA, as it now
maintains, some sort of objection would have been expected.
The University's inaction may have resulted from a
perception that Sharp's email was seen as helpful to the common
interests of Sharp and the University in avoiding NCAA
sanctions, as it showed that Sharp sought advance approval of
the trip to Spain. The use of the email in Hedden's CEPA case,
however, poses significant problems for the University because,
as the motion judge noted, it "corroborates, to some degree, the
[p]laintiff's claim that Michele Sharp worked with several high
level officials to arrange the trip without notifying the
[p]laintiff."
8
The attorney-client 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.
See Permian Corp. v. United States, 665 F.2d 1214, 1221 (D.C.
Cir. 1981) ("The client cannot be permitted to pick and choose
among his opponents, waiving the privilege for some and
resurrecting the claim of confidentiality to obstruct others, or
to invoke the privilege as to communications whose
confidentiality he has already compromised for his own
benefit.") To permit this selective assertion of the privilege
by the University denies plaintiff access and use of a critical
document that the University gave its implied consent to use in
another proceeding.
Because I find the University's assertion of privilege to
be unsupported by the facts and the law, I respectfully dissent.
9