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November 26, 2014

Sending a copy of an e-mail containing confidential agency information addressed to other supervisors to her attorney not protected by an “attorney-client” privilege


Sending a copy of an e-mail containing confidential agency information addressed to other supervisors to her attorney not protected by an “attorney-client” privilege
OATH Index No. 2614/14

A supervisor was served with disciplinary charges alleging she had included confidential information about agency clients in an email to supervisors that she had “e-mail copied” to her attorney.

Acknowledging that she had sent the email contained confidential information, she argued that she had not redacted the confidential information in the copy of her communication sent to her attorney because she considered her communications with her attorney to be privileged and confidential.

Oath Administrative Law Judge Ingrid M. Addison explained that the attorney-client privilege “enables one seeking legal advice to communicate with counsel ... secure in the knowledge that the contents of the exchange will not be revealed against the client’s wishes and that the communication over which privilege is asserted must have been made for the purpose of obtaining legal services and advice in the course of a professional relationship.

Judge Addison ruled that the e-mail the accused employee sent to her attorney was not privileged because it was directed to her supervisors, not her attorney, and was not an attempt to solicit legal advice of her attorney nor could it be interpreted as such. 

The ALJ found the supervisor was insubordinate when she walked out of a meeting with supervisors after being warned not to.

However Judge Addison dismissed a second charge alleging insubordination involving the supervisor's walking out of a meeting with her superior when another supervisor was called in to what was to be a “one-on-one” meeting with the superior.

The ALJ recommended that the supervisor be suspended without pay for 23 day, consisting of a 3-day suspension without for with respect to charges of insubordination related to her walking out of the meeting with a group of supervisors and a 20-day without pay for "wanton disregard" of the employer’s rules when she a copy of an e-mail to other supervisors that contained confidential agency information to her attorney.

The decision is posted on the Internet at:
http://archive.citylaw.org/wp-content/uploads/sites/17/oath/14_Cases/14-2614.pdf

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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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