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New Jersey Superior Court Appellate Division • 2013

Glenn Hedden v. Kean University

434 N.J. Super. 1 | 82 A.3d 238

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Takeaway

In short, this case holds that an employee's confidential request for legal review from organizational counsel is the institution's privilege, and an employee acting without authority cannot waive it through a personal disclosure to a third party.

Background

Glenn Hedden, Kean University's former athletic director, alleged that the University fired him in retaliation for reporting possible NCAA violations involving the women's basketball program. The alleged violations arose from a 2010 team trip to Spain, including its fundraising and academic-credit components. Hedden sued Kean under the Conscientious Employee Protection Act and also asserted defamation claims.

Before sending fundraising letters for the Spain trip, women's basketball coach Michele Sharp emailed a draft letter to Kean's general counsel, Michael Tripodi, asking him to review whether it was "worded ok." Tripodi gave Sharp an oral response. During the later NCAA investigation, Sharp—represented by her own lawyer—submitted the email to the NCAA as part of her personal response to a Notice of Allegations. Kean received a copy of her submission but had not authorized the disclosure and did not object to it at that time.

In discovery in Hedden's civil action, Hedden sought the email. Kean withheld it under the attorney-client privilege. The Law Division initially found that Kean had not shown Sharp sought legal advice. On reconsideration, after Tripodi certified that he understood Sharp to be seeking legal advice and had provided it, the court found an attorney-client relationship. It nonetheless compelled production, concluding that Sharp's NCAA disclosure waived the privilege. The Appellate Division granted leave to appeal and reversed.

Issues

Issue #1

Whether Sharp's email to Kean's general counsel was protected by the attorney-client privilege.

Holding

Yes. Sharp sent the email in her employment capacity to obtain legal advice from University counsel, and the communication was confidential.

Reasoning

Attorney-client privilege protects confidential communications in which a client seeks legal advice from an attorney acting as a legal adviser. Although the party asserting the privilege bears the burden of showing that it applies, New Jersey recognizes a presumption that communications made in the attorney-client relationship are made in professional confidence.

For an organizational client, the privilege belongs to the institution and extends to communications between its counsel and employees who act within the scope of their work. An employee's rank is not dispositive: communications by even mid-level or low-level employees are privileged when they are made to help counsel provide legal advice to the organization.

Sharp's request that Tripodi review the draft fundraising letter was a request for legal advice, not merely business guidance. Tripodi had no fundraising role apart from reviewing University communications for legal compliance and for language that might improperly bind the University. He understood Sharp's request in that legal capacity, reviewed the letter, and conveyed his legal opinion.

Sharp also reasonably expected confidentiality. She sent the email internally to University counsel while acting as head coach. Copying another University employee did not defeat confidentiality because limited circulation among employees with a shared institutional interest in the matter does not waive confidentiality in the corporate-client setting.

Issue #2

Whether Sharp's disclosure of the privileged email to the NCAA waived Kean University's attorney-client privilege.

Holding

No. Sharp lacked authority to waive the University's privilege, and her unauthorized personal disclosure did not bind the University.

Reasoning

Under New Jersey's waiver rule, privilege may be waived by the holder through a knowing, voluntary disclosure or consent to disclosure. In the organizational setting, however, the client is the organization itself—not each employee who communicates with its lawyer. Authority to waive therefore rests with those who manage or control the organization's activities, rather than with every employee.

Sharp was neither an officer, director, nor management-level official with authority to waive Kean's privilege. When she gave the email to the NCAA, she was responding through her own lawyer to an NCAA inquiry directed specifically at her. She acted in her personal interest, not at Kean's direction or in the performance of an authorized University duty.

Kean neither directed nor approved Sharp's production of the email, and Sharp did not seek advance permission. Kean's failure to object immediately after receiving a copy of Sharp's NCAA response did not transform her unilateral disclosure into an authorized waiver. A nonholder's unauthorized disclosure ordinarily does not waive the actual client's privilege.

Issue #3

Whether the email could nevertheless be compelled under the need-and-materiality balancing test from In re Kozlov.

Holding

No. The Kozlov test did not justify piercing the privilege in this civil employment dispute.

Reasoning

The trial court appeared to rely on the email's relevance, Hedden's need for it, and the absence of a less intrusive source under In re Kozlov. But the New Jersey Supreme Court has substantially confined Kozlov's privilege-piercing analysis to cases involving constitutional rights, especially in criminal-law settings.

Hedden's CEPA and defamation case did not present a constitutional right, overriding public-policy concern, or comparable societal interest that would require the attorney-client privilege to yield. Because the email was privileged and no authorized waiver occurred, it remained protected from discovery.

Dissents

Judge Guadagno

Reasoning

Judge Guadagno concluded that Sharp's email was not privileged at the outset because it was not sent to obtain legal advice in confidence. Asking whether a fundraising letter was "worded ok" more naturally sought approval or business guidance, particularly because Sharp copied Executive Vice President Philip Connelly, a nonlawyer. Communications do not become privileged merely because they are sent to an attorney, and business advice is generally outside the privilege.

Sharp's own NCAA submission reinforced that reading. She explained that she contacted Tripodi and Connelly because Hedden would not discuss the trip, course, or fundraising with her, and stated that her email prompted Connelly to offer support for the project. In the dissent's view, this showed that Sharp sought University backing and notice for the Spain trip, not confidential legal counsel.

Judge Guadagno also found waiver even if privilege initially attached. Kean received Sharp's NCAA response containing the email and raised no privilege objection until Hedden sought the document in civil discovery more than a year later. That silence supported the inference that Kean accepted the disclosure because it aided the shared interest of Sharp and the University in resisting NCAA sanctions.

The dissent regarded Kean's later assertion of privilege as selective and opportunistic. The email helped Kean before the NCAA by suggesting Sharp had obtained advance institutional approval, but it could assist Hedden's retaliation claim by corroborating that Sharp worked with high-level University officials without informing him. In Judge Guadagno's view, Kean could not allow disclosure when it was advantageous and then revive confidentiality to block an opposing litigant's use of the same document.