Hedden v. Kean University, A-4999-12T2; Appellate Division; opinion by Parrillo, P.J.A.D.; dissent by Guadagno, J.A.D.; decided and approved for publication October 24, 2013. Before Judges Parrillo, Harris and Guadagno. On appeal from an interlocutory order of the Law Division, Union County, L-2278-11. DDS No. 04-2-xxxx [26 pp.]
Plaintiff Glenn Hedden, formerly Kean University’s athletic director, filed this action alleging wrongful termination in violation of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14, and defamation. The termination was supposedly for failure to properly supervise subordinates, which resulted in the university being sanctioned by the National Collegiate Athletic Association for violations of NCAA rules.
The incident giving rise to the NCAA action was the effort of Michele Sharp, the head women’s basketball coach at Kean, to organize a summer trip to Spain for her team during which the students would develop their skills as players and earn three credits in a Spanish history course. To defray the cost of the trip, she drafted a fundraising letter to potential donors that she then attached to an email to Michael Tripodi, the university’s general counsel, requesting his review.
Plaintiff alleges that he learned of possible NCAA violations associated with the trip after the students returned. After an investigation, he reported the violations to the NCAA. Its investigation resulted in issuance of a notice of allegations to Sharp and Kean. Sharp retained her own attorney and as part of her response, produced her email to Tripodi. Although the university received a copy of her submission, it claims it was not consulted beforehand and did not authorize disclosure of the email. However, it did not assert any privilege regarding the document until plaintiff requested its production during discovery. The university refused, asserting the email was protected by the attorney-client privilege and that there had been no waiver of the privilege because Sharp was not authorized to waive the privilege on its behalf.
The motion judge ultimately held that there was an attorney-client relationship between Sharp and Tripodi but that it had been waived by Sharp’s disclosure of the email.
On appeal, Kean again argues that Sharp was not authorized by it, as holder of the attorney-client privilege, to waive its protection.
Held: As an employee of the university and acting within the scope of her employment, Sharp’s purpose in sending the email to Tripodi was to solicit his legal advice and, thus, an attorney-client relationship was formed. Further, since she was not acting as the university’s agent or with its express authorization when she disclosed the email to the NCAA, her disclosure was not a waiver under N.J.R.E. 530 and N.J.S.A. 2A:84A-29 and the privilege exists to protect the email from disclosure.
The majority says it is well-settled that communications between lawyers and clients in the course of that relationship and in professional confidence are privileged and therefore protected from disclosure. The benefit of the privilege extends to a corporation or other organization that must act through its officers and employees. The privilege, therefore, belongs to the institution and covers confidential communications between the entity’s attorneys and its employees.
The panel finds that as an employee of the university and acting within the scope of her employment, Sharp’s purpose in sending the email to Tripodi was to solicit his legal advice and, thus, an attorney-client relationship was formed. There would be no plausible reason for the request to review other than to solicit his legal advice since he had no other involvement in university fundraising.
Equally clear is that Sharp was acting within the scope of her employment when soliciting legal advice from university counsel and that her communication to him was made in confidence. She had a reasonable expectation of confidentiality since the document was sent internally to Tripodi in his capacity as university counsel and 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 her interest in protecting the university from liability.
As to whether the privilege was waived on Sharp’s disclosure of the email to the NCAA, the panel says generally, once privileged material is disclosed, the privilege is waived, but not all disclosures amount to waivers. An unauthorized disclosure by someone who is not the holder of the privilege does not generally constitute a waiver. In the organizational context, the authority to waive the privilege does not belong to each employee but is held by the organization and the individuals who may waive the privilege on its behalf are those who manage or control its activities.
Sharp does not fit within this category. Moreover, she was not acting at the university’s direction when she released the document to the NCAA. She was not the holder of the privilege and it was not hers to waive. Nor did she have implied authorization to disclose the email because the university did not object at the time of its production. The fact that Kean did not object at that time does not defeat assertion of the privilege by its true holder.
Where Sharp was clearly not acting as the university’s agent or with its express authorization, her disclosure to the NCAA was not a waiver under N.J.R.E. 530 and N.J.S.A. 2A:84A-29 and the privilege exists to protect the email from disclosure.
Judge Guadagno dissents because he believes that Sharp did not send the email to seek legal advice and that any privilege that may have attached to the email was waived when she submitted it, without any objection from the university to the NCAA.
For appellants — Michael J. Dee (McElroy, Deutsch, Mulvaney & Carpenter; John J. Peirano of counsel; Dee and Melanie D. Lipomanis on the brief). For respondent — David F. Corrigan (The Corrigan Law Firm; Corrigan and Bradley D. Tishman on the brief).