New Jersey Appellate Division Holds Communication Sent to General Counsel Does not Waive Attorney-Client Privilege

In a precedential case, the New Jersey Appellate Division held that an email sent by an employee of a corporation to the corporation’s general counsel was inadmissible under the attorney-client privilege and that such privilege was not subsequently waived when the employee later disclosed the email to a third party.

The case involved the alleged illegal compensation of the Kean University women’s basketball team. The head coach at the time of the incident emailed the University’s general counsel a draft letter involving potential donors for sponsorship of the team for review. The coach later disclosed this email to the NCAA during its investigation into the matter. The University did not object to the disclosure at the time the email was released. In the lawsuit, the plaintiff claimed that the email was not privileged, while the defendants, including the University, maintained that it was. The trial court held that the defendants failed to prove that the purpose of the email was for legal advice and was therefore not privileged and admissible. The court held further that, even if the email was privileged, the disclosure of the email to the NCAA constituted a waiver of that privilege.

Reversing the trial court, the Appellate Division determined that the coach’s email to the University’s general counsel was protected under the attorney-client privilege because it was sent for the purpose of legal advice. The court found that it was in normal business practice to send official documents to the general counsel in order to ensure that the documents conformed to the law and that there was no other logical reason for sending the letter to the general counsel but to obtain legal advice. Additionally, the court held that the privilege was not waived because the coach copied other employees of the University on the email, since the other employees had a shared interest in the University’s liability. Circulation within the pertinent group does not waive the attorney-client privilege. Furthermore, the court found that the privilege was not waived when the coach disclosed the email to the NCAA because the University, not the coach, was the client with the ability to waive the privilege. As a corporation, the general counsel represents the entity, not each individual employee, therefore only the officer or directors of the University have the right to waive the attorney-client privilege. Even though the University did not object to the disclosure at the time it occurred, it did not authorize the coach to make such a disclosure because he was not acting as an agent of the University.

Finally, the court held that the email should not be admitted due to “relevance and materiality” because such allowance is limited to when constitutional rights are threatened, which is not the case in this matter. As a result, the Court of Appeals found that the email was privileged and could not be discovered by the Plaintiff.