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Attorney-client privilege defeats motion to depose attorney

Attorney-client privilege defeats motion to depose attorney
Clark v Schuylerville Cent. School District, 57 AD3d 1145

Linda Clark, a teacher at Schuylerville Central School District, was placed on administrative leave after showing the R-rated movie Macbeth to her 10th grade class ?in violation of the [d]istrict's policy and procedures."].

Thomas S. Martin, principal of Schuylerville Junior/Senior High School, told Jeffrey Honeywell, an attorney retained by the District to provide legal advice and counsel, that Clark had shown the film in violation of the District's policies and procedures.

Clark sued the School District and others, alleging defamation and intentional infliction of emotional distress. The only surviving claim in this action concerned Clark?s ?cause of action for defamation with regard to Martin's statement.? Clark appealed a Supreme Court ruling that denied her motion to compel the District and Honeywell to give additional deposition testimony.

The Appellate Division affirmed the Supreme Court?s ruling.

Here, said the Court, Clark seeks to compel additional testimony regarding, among other things, the statement allegedly made by Martin to Honeywell. However, as Supreme Court decided, the District and Martin met their burden of establishing that the attorney-client privilege attached "as the defendants in this action were seeking legal advice from Honeywell relating to the management of the District's teaching staff, and that their conversations with Honeywell were confidential and private."

The Appellate Division held that the ?defendants demonstrated that the information sought to be protected from disclosure was a 'confidential communication' made to the attorney for the purpose of obtaining legal advice or services' and ... there is no merit to [Clark?s] assertion that Reed or Martin engaged in conduct from which a waiver of the privilege could be inferred ?? and dismissed her appeal.

N.B. The attorney-client privilege ?belongs? to the client and not the attorney. Only the client may claim the privilege and only the client may elect to waive it. However, a court may deem communications between the client and a third party to constitute a waiver of the privilege.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09685.htm

Full post as published by New York Public Personnel Law on April 27, 2010 (boomark / email).