Where an attorney represents an entity comprised of a multitude of employees, which employees have the right to waive the attorney-client privilege? The Appellate Division of the Superior Court of New Jersey evaluated this issue in Hedden vs. Kean University.

Plaintiff Glenn Hedden was the University’s former athletic director, who supervised Michele Sharp in her position as the coach of the women’s basketball team at the University. Plaintiff was terminated from his position for failure to properly supervise the program, which in turn led to the University being sanctioned by the NCAA for violations of its regulations. Plaintiff responded by filing a complaint against the University for wrongful termination.

The incident giving rise to the NCAA action concerned Sharp’s efforts in 2010 to organize a summer trip for her basketball team. Sharp had drafted a fundraising correspondence to potential donors, and attached the fundraising letter in an e-mail to the University’s general counsel requesting his review. Following this trip, the NCAA issued a Notice of Allegations to both Sharp and the University, requesting a response from each.

Sharp retained her own attorney to represent her in the NCAA matter, and served the NCAA with a copy of her e-mail directed to the University’s general counsel. The University did not object to this release to the NCAA, or assert any privilege attaching to the document in the NCAA action.

When plaintiff Hedden requested production of the Sharp e-mail during the course of the wrongful termination action, the University objected asserting that it was protected by attorney-client privilege. Hedden claimed that the privilege had been waived by Sharp.

The Superior Court of New Jersey, Appellate Division ultimately determined that Sharp’s e-mail was protected by the attorney-client privilege, even though it was disclosed to the NCAA during its investigation into the University’s athletic program.

The University was considered the client and holder of the privilege. As such, the privilege could only be waived by an officer or director of the entity, or by someone acting under the express approval of an officer or director. Sharp was neither an officer nor director, and did not obtain approval for release of the e-mail or waiver of privilege. Therefore, the appellate court reversed the findings of the trial court, and held that the e-mail was protected by attorney-client privilege.

Thanks to Steve Kim for his contribution.

For more information, contact Denise Fontana Ricci at .