Seeking access to materials claimed to be protected by the Attorney-Client Privilege

The term "Attorney-client privilege" is typically applied to the work product of an attorney that may be claimed to be confidential legal communications between a client and the client's attorney's. The privilege is usually asserted by the client's attorney when confronted with a demand for the communication. Additionally, the "privilege" belongs to the client and may not be waived by the attorney absent the client's consent. 

In this appeal the Appellate Division held that the motion court, following an in camera review,* "providently exercised its discretion in directing various communications to be produced by the defendants [Defendants] and delivered to the complainant [Plaintiff]. The court concluded that the Defendants' internal correspondence concerning the item "at the heart of this litigation are not materials uniquely the product of a lawyer's learning and professional skills, such as those reflecting an attorney's legal research, analysis, conclusions, legal theory, or strategy, and are thus not privileged," citing Gottwald v Sebert, 172 AD3d 445.

Additionally, the court explained, emails between the Defendant in this action and an attorney representing a third party "are not privileged as their substance was clearly in connection with the attorney's representation of the third party, whose position at that time was adverse to defendant."

Secondly, opined the Appellate Division, "correspondence between the public relations manager of [a former client of Defendants and the Defendants] was not in furtherance of either parties' legal positions but in response to a disagreement over a Tweet" and "cannot reasonably be characterized as confidential communications made for the purposes of legal advice."

Addressing Defendants' communications demanded by Plaintiff between Defendants and their public relations firm, the court said that such communications did not "reflect a discussion of legal strategy relevant to the pending litigation but, rather, a discussion of a public relations strategy," and thus are not protected by the attorney-client privilege.

* The term “in camera” refers to a closed and private session of a court or some other tribunal. As used here, it refers to the review of the documents in question by the court in his or her chambers, the public being excluded from that proceeding.

Click HEREto access the Appellate Division's ruling.

 

Arbitration award challenged in a CPLR Article 75 proceeding confirmed

The Appellate Division unanimously reversed a Supreme Court's decision granting Plaintiff's petition challenging an arbitration award and remanding the matter for a new hearing before a different arbitrator. The court then reinstated initial arbitrator's determination and penalty imposed "on the law".

The Plaintiff in the instance action was the subject of a prior disciplinary action involving charges of violating his employer's attendance rules. These charges were resolved by a written stipulation and agreement. The stipulation provided that [1] the charges were sustained; [2] that the Plaintiff would accept a "30 day suspension";  [3] agreement constituted a final warning "on time and attendance violations" and [4] the authority of the arbitrator adjudicating "any time and leave violations occurring within eighteen (18) months of the [date of the] stipulation," would be "limited to review of the charged misconduct, which if sustained would result in dismissal."

Prior to the expiration of this 18 month period Plaintiff was charged with [1] failing to report to work for 12 days and [2] abandonment of his position, in violation of his employer's Time and Leave Rules, which require that employees obtain prior approval for all leaves of absence, "except for such emergencies as death in immediate family and other substantiated unforeseeable occurrences."*

At the hearing which followed the Plaintiff testified that he was absent to care for his daughter who is bipolar and had  attempted suicide on previous occasions.

However, the arbitrator found that the documents offered by the Plaintiff in justification of his absences consisted of [1] a note signed by a physician indicating  that the Plaintiff's daughter sought treatment at an urgent care on the dates of Plaintiff's absence; and [2] did not include a diagnosis or any specific supervision or treatment recommendations other than Plaintiff's daughter should "refrain from going to work and school for a certain number of days."

This, said the arbitrator, neither serve to substantiate the level of care Plaintiff's daughter required nor that she needed his constant presence.

The Appellate Division held that under these circumstances, "there was a plausible basis for the arbitrator's finding that Plaintiff's] excuse for his prolonged absence without prior approval was not sufficiently substantiated, despite the challenging circumstances presented by his daughter's mental health."

* Although Plaintiff "called in" to report he would be absent from work each day, he did not obtain prior approval for any of these absences.

Click HEREto access the text of Appellate Division's ruling.

 

A writ of mandamus seeking to compel a public officer to perform a certain act will not be issued if the act is discretionary in nature

Plaintiffs, who are teachers and professional staff employed by a school district [Respondent], commenced this CPLR Article 78 proceeding seeking a writ of mandamus*to compel Respondent to offer courses and sequences in the arts during the school day and equitably throughout the school district "in accordance with regulations promulgated by the New York State Commissioner of Education.

Supreme Court dismissed Plaintiffs' petition and Plaintiffs appealed.

The Appellate Division, noting that a writ of mandamus "is available to compel a governmental entity or officer to perform a ministerial duty, explained that the writ "does not lie to compel an act which involves an exercise of judgment or discretion" and citing Matter of Brusco v Braun, 84 NY2d 674, explained that such a writ is "an extraordinary remedy that is available only in limited circumstances."

In this instance, opined the court, Supreme Court "properly determined that mandamus to compel does not lie" as the regulations relied on by Plaintiffs provide, in relevant part, that a school district "shall offer students the opportunity to complete a three- or five-unit sequence in ... the arts and must provide that opportunity beginning in ninth grade."

In the words of the Appellate Division: "Although the regulations provide that the District must offer students the opportunity for an arts sequence, [Respondent] may exercise discretion in how to do so." The court then explained that "because the actions that [Petitioners] seek to compel are not ministerial in nature but discretionary, mandamus to compel does not apply."

Accordingly, the Appellate Division sustained Supreme Court's ruling.

* A writ of mandamus is one of a number of the ancient “common law” writs and is granted by a court to compel an official to perform acts that such an official is duty-bound to perform. Other such ancients writs include the writ of prohibition, issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction"; the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of  “quo warranto,” which requires a person or body to show by what warrant, office or franchise, held, claimed, or exercised, with respect to that individual or entity performing a particular act or omission. New York State's Civil Practice Law and Rules [CPLR] sets out the modern equivalents of the surviving ancient writs.

Click HERE to access the Appellate Division's decision posted on the Internet.