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October 12, 2010
Communications between department’s attorney and agency employees privileged
Coleman v City of New York, NYS Supreme Court, Judge Peck, [Not selected for publication in the Official Reports]
In the private sector, conversations between an attorney and his or her client are private and cannot be disclosed without the client’s permission. If the employer is an entity such as the New York City Department of Health, and different employees speak with the department’s attorney, are such conversations privileged?
In the Coleman case, a state Supreme Court Justice ruled that the answer is yes.
State Supreme Court Judge George R. Peck said that the rules that applied in cases involving a private corporation were equally applicable to governmental employers. Just as the attorney-client privilege applies to confidential communications between a corporation and its attorneys, including communications between the corporation’s attorney and low-level corporate employees, the “Defendant City is a legal creation which acts through its employees, at all levels.”
Michael Coleman was terminated from his position at the Health Department in May 1998 as a result of having been prosecuted for taking bribes. Coleman denied taking any bribes and sued the city. His complaint alleged false arrest, malicious prosecution and related charges.
Coleman’s attorney attempted to depose a number of city employees concerning communications they had with an Assistant Corporation Counsel [ACC] concerning the case. The ACC objected, contending that conversations were privileged.
The attorney-client privilege generally excuses an attorney from having to disclose the content of communications concerning actual or potential litigation between the attorney and his or her client unless the client waives the privilege. Further, the attorney-client privilege may be invoked only by the client, or by the attorney on behalf of the client. The client, of course, may elect to “waive” the privilege.
Coleman’s attorney claimed that there was no attorney-client privilege because the employees he sought to depose had not asked the ACC to represent them in this litigation.
State Supreme Court Judge Peck decided that the communications were, in fact, privileged and prohibited Colemen’s attorney from deposing the employees concerning their conversations or other communications with the ACC. According to the ruling, it did not make any difference whether the employee-witness asked the Corporation Counsel to represent him or not -- the communications were privileged.
Judge Peck held that just as attorneys for corporations and for individual clients, the defendant City must have the same opportunity for a privileged “open dialogue” by its attorney in preparing city employee-witnesses for trial. Otherwise, the city “would be at a disadvantage in preparing for trial as compared to other types of parties.”
In the Matter of Lindsey Grand Jury Testimony, 148 F.3d 1100, a U.S. Circuit Court of Appeals held that if a public official wishes to claim the attorney-client privilege in connection with discussions involving “official business” with an attorney, he or she should employ and consult with a private attorney instead of discussing the matter with a government employee-attorney.
Here the issue was whether the conversation between the President of the United States and a federal government employee-attorney serving as his counsel for the purpose of obtaining legal advice triggered the attorney-client privilege with respect to compelling the attorney to testify before a grand jury concerning his conversations with the President. The Circuit Court ruled that in this instance no attorney-client relationship was created.
Public Personnel Law E-books
The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 700 page e-book. For more information click on http://booklocker.com/books/5215.html
A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. For more information click on
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SELECTED REFERENCES and BLOGS
- A Handbook addressing disciplining public employees
- A Handbook focusing on imposing reasonable disciplinary penalties
- A Handbook focusing on layoff and reinstatement
- A Handbook on Disability Benefits for public employees
- A sample personnel handbook
- Blogging Civil Rights Law
- Blogging Constitutional Law
- Blogging Disability Law
- Blogging Education Law
- Blogging Human Rights Law
- Blogging Legal Information
- Blogging Military Law
- Blogging public libraries
- Challenging Adverse Personnel Decisions
- COVID-19 - New York State maps and data
- Delaware Employment Law Blog
- Gotham schools newsroom - A NYC school news blog
- New York City ERS blog - by John Murphy
- NY Municipalities - NYMUNIBLOG
- St. Lawrence County Civil Service Web Site
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