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Email Still Consider Privileged Information

December 6, 2013 | Posted In Criminal Law, Recent News

Communications between a college coach and his employer’s general counsel remained within the bounds of lawyer-client privilege laws, even though the coach shared the email chain with a third party, a state appeals court ruled. The coach did not have the right to waive the privilege, because he was not the client. Criminal lawyers in New Jersey say that this decision may affect all communications that fall under attorney-client privilege protection. 

Former Kean University athletic director Glenn Hedden was fired after he reported violations in the teams fundraising campaigns, and he pursued a whistleblower suit against his employer, Kean University, soon afterwards. Included in his lawsuit as evidence was an email from the women’s basketball coach Michele Sharp to their lawyer, Michael Tripodi, sent in 2010, which had a draft of the fundraising letter for the team’s trip to Spain. The email message read: “Please let me know if it is worded ok.” Although the email did not specifically state that Sharp was seeking legal advice from Tripodi, the text does ask for an “ok” on the wording, presumably for legal purposes of following NCAA sanctions and school guidelines for student trips.

The Spain trip was offered for course credit—called “History of Spain”—to current and former basketball players, a restriction that violated the National Collegiate Athletic Association (NCAA) rules against compensating players. Hedden claimed that he did not know about the trip until after it had taken place, and reported the incident to the NCAA. He was fired in 2011 amidst claims that he had failed to supervise the basketball program. 

The following year, the NCAA concluded their investigation and issued sanctions against the school, placing all University athletic teams on a four-year probation. The email between Sharp and the school’s lawyer was allowed in the whistleblower suit by Union Superior Court Judge Karen Cassidy, who waived the attorney-client privilege. But this decision was recently reversed by the appellate court, because the email was part of a confidential correspondence between the school’s general counsel and a member of the faculty. 

The appellate court stated that because Hedden was not copied on the original email, he was not part of the correspondence and could not waive the right to attorney-client privilege. Sharp could not waive the right either, even though she sent the email, because only officers or directors can waive privilege on behalf of a large entity like Kean University. In their decision, the majority of the appellate judges ruled that not all college employees have the authority to waive the attorney-client privilege, even in their own correspondence. Although Sharp and Hedden turned over the email to the NCAA, the judges deemed it confidential because of the existing attorney-client privilege. The judges also stated that it was unnecessary for the university board members to object to the sharing of the email at the time of the whistleblower lawsuit.  

The criminal attorneys at New Jersey law firm Helmer, Conley, and Kasselman, PA, represent anyone who has been charged with criminal activity or who may need clarification between what is considered confidential between clients and attorneys.

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