                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-4999-12T2


GLENN HEDDEN
                                     APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                        October 24, 2013
v.                                     APPELLATE DIVISION

KEAN UNIVERSITY, MATTHEW CARUSO
and PHILIP CONNELLY,

     Defendants-Appellants.



         Argued September 23, 2013 - Decided October 24, 2013

         Before Judges Parrillo, Harris and Guadagno.

         On appeal from an Interlocutory Order of the
         Superior Court of New Jersey, Law Division,
         Union County, Docket No. L-2278-11.

         Michael J. Dee argued the cause for
         appellants (McElroy, Deutsch, Mulvaney &
         Carpenter, LLP, attorneys; John J. Peirano,
         of counsel; Mr. Dee and Melanie D.
         Lipomanis, on the brief).

         David F. Corrigan argued the cause for
         respondent (The Corrigan Law Firm,
         attorneys; Mr. Corrigan, of counsel; Mr.
         Corrigan and Bradley D. Tishman, on the
         brief).

         The opinion of the court was delivered by

PARRILLO P.J.A.D.
     We granted leave to appeal an interlocutory order of the

Law Division compelling production of an e-mail sent by the head

women's basketball coach at Kean University to the University's

general counsel, that the University claims is protected by the

attorney-client privilege.     For reasons that follow, we reverse.

     Briefly by way of background, plaintiff Glenn Hedden is the

University's former athletic director.    In that capacity, he

supervised Michele Sharp, who was the head women's basketball

coach at the University.     Plaintiff was terminated on May 2,

2011, supposedly for failure to properly supervise subordinates

in the athletic program, which in turn led to the University

being sanctioned by the National Collegiate Athletic Association

(NCAA) for violations of NCAA rules in connection with its

women's basketball program.    Plaintiff responded by filing a

complaint against the University1, alleging wrongful termination

in violation of the Conscientious Employee Protection Act,

N.J.S.A. 34:19-1 to -14 (CEPA), for reporting those violations

to the NCAA, and defamation.

     The incident giving rise to the NCAA action concerned

Sharp's efforts in 2010 to organize a summer trip to Spain for


1
  Also named in the complaint as defendants were Philip Connelly,
the University's executive vice president of general operations,
and Matthew Caruso, the University's director of media
relations.



                                  2                         A-4999-12T2
her basketball team.   There was both an educational and athletic

component to the tour, as the student-athletes would be

developing their skills as basketball players as well as earning

three credits in a Spanish history course.    To defray the cost

of the trip, Sharp drafted fundraising correspondence to

potential donors, requesting their sponsorship.    Before

releasing it, however, on January 29, 2010, Sharp sent an e-mail

with the fundraising letter attached to Michael Tripodi, the

University's general counsel, requesting his review.     Tripodi

apparently responded orally to Sharp.

    According to plaintiff, it was not until the Fall 2010,

well after the team returned from Spain, that he first became

aware of possible violations of NCAA regulations associated with

the trip, particularly its funding and academic course aspects.

After he conducted an internal investigation, plaintiff

contacted the NCAA to report the violations uncovered.

    Consequently, the NCAA launched its own confidential

investigation, as a result of which the entity 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 as part of her January 23,

2012 response, produced, through counsel, her January 29, 2010

e-mail to Tripodi, which is at the core of the controversy in




                                 3                          A-4999-12T2
this appeal.2   Although the University received a copy of Sharp's

submission to the NCAA, it claims it was never consulted

beforehand and did not authorize disclosure of the disputed e-

mail.   Neither, however, did the University object to its

release to the NCAA or assert any privilege attaching to the

document, until, that is, the present litigation.

     During discovery, plaintiff requested production of, among

other things, the January 29, 2010 e-mail from Sharp to Tripodi.

The University refused, asserting the e-mail was protected from

disclosure by the attorney-client privilege because it was sent

to counsel for the purpose of obtaining legal advice.   Plaintiff

disagreed, contending the e-mail was not contained in a

privilege log and, in any event, the privilege was waived by

Sharp's disclosure of the e-mail to the NCAA without the

University's objection.    The University countered that there was

no waiver of the privilege because Sharp was not authorized by

her employer — the actual holder of the privilege — to waive the

privilege on its behalf.

     Unable to resolve the matter, plaintiff moved to compel

production of the disputed e-mail.    In granting the requested



2
  Sharp's response to the NCAA indicated that the e-mail may
concern plaintiff's alleged refusal to discuss with her the
Spanish course and financing for the term's trip to Europe.



                                 4                           A-4999-12T2
relief, after reviewing the e-mail in camera,3 the motion judge

found that defendant failed to prove Sharp's purpose in sending

the e-mail was to obtain legal advice and that, in any event, as

holder of the privilege, Sharp's submission of the e-mail to the

NCAA constituted a waiver.

       On their motion for reconsideration, defendants submitted

the certification of Tripodi attesting to his understanding that

the purpose of Sharp's e-mail was to obtain legal advice and, as

a result, he rendered legal advice to Sharp.    Tripodi further

certified that "employees at the direction of those in the

management ranks often come to me for the purpose of obtaining

legal advice on various matters concerning the University[,]"

and that he reviewed Sharp's letter to "ensure that external


3
    Concerning the disputed item, the motion judge commented:

                 Here, both the e-mail and the
            attachment are relevant to the plaintiff's
            C.E.P.A. claim since the content of the e-
            mail corroborates, to some degree, the
            plaintiff's claim that Michele Sharp worked
            with several high level officials to arrange
            the trip without notifying the plaintiff.
            Plaintiff makes this allegation in ¶ 11 of
            his Complaint. In addition, upon reviewing
            the content of the attachment, which is a
            letter addressed to a blank recipient and is
            signed by Sharp, it is clear the letter was
            intended to be used to generate financial
            support or seek donations from recipients of
            the letter to help defray the cost of the
            trip for students on the basketball team.



                                  5                        A-4999-12T2
communications sent by a University employee in his or her

official capacity do not improperly purport to bind or commit

the University to future conduct."

    Accepting the Tripodi certification, the motion judge found

that there was an attorney-client relationship between Sharp and

Tripodi, but nevertheless reaffirmed her earlier ruling that the

privilege had been waived upon Sharp's disclosure of the e-mail

to the NCAA.   Rejecting defendants' position that Sharp was not

acting within the scope of her authority upon such disclosure,

the motion judge reasoned:

              However, in this context the court
         finds that Sharp's disclosure to [the]
         N.C.A.A. waived the privilege because it
         appears from all the evidence provided to
         the court, that not only was Sharp's
         submission consistent with upper
         management's position regarding the
         allegations on the financial benefit, but
         [defendants'] failure to demonstrate the
         University's contrary position on this issue
         renders their argument specious.
         Additionally, [defendants] did not seek to
         prevent disclosure of the e-mail based on
         the privilege to the N.C.A.A. or take any
         action after it was disclosed to prevent any
         consideration of the material contained
         therein.

    On appeal, defendants essentially argue, as they did below,

that Sharp was not authorized by the University, as holder of

the attorney-client privilege, to waive its protection.   We

agree.




                                6                         A-4999-12T2
    We start with some basic principles that govern our

disposition of the matter.   First, we "normally defer to a trial

court's disposition of discovery matters . . . unless the court

has abused its discretion[,]" or the decision is based on "a

mistaken understanding of the applicable law."    Payton v. N.J.

Tpk. Auth., 148 N.J. 524, 559 (1997).   Because "[a] trial

court's interpretation of the law and the legal

consequences that flow from established facts are not entitled

to any special deference[,]" Manalapan Realty v. Manalapan Twp.

Comm., 140 N.J. 366, 378 (1995), we review the applicability of

the attorney-client privilege, and its potential waiver in this

case, de novo.

    It is well-settled under New Jersey law that communications

between lawyers and clients "in the course of that relationship

and in professional confidence" are privileged and therefore

protected from disclosure.   N.J.S.A. 2A:84A-20(1); N.J.R.E.

504(1).   Specifically, the attorney-client privilege generally

applies to communications (1) in which legal advice is sought,

(2) from an attorney acting in his capacity as a legal advisor,

(3) and the communication is made in confidence, (4) by the

client.   See Metasalts Corp. v. Weiss, 76 N.J. Super. 291, 297

(Ch. Div. 1962).




                                7                            A-4999-12T2
    The attorney-client privilege "recognizes that sound legal

advice or advocacy serves public ends and rests on the need to

'encourage full and frank communication between attorneys and

their clients.'"    United Jersey Bank v. Wolosoff, 196 N.J.

Super. 553, 561 (App. Div. 1984) (quoting Upjohn Co. v. United

States, 449 U.S. 383, 389, 101 S. Ct. 677, 682, 66 L. Ed. 2d

584, 591 (1981)).   "'Preserving the sanctity of confidentiality

of a client's disclosures to his attorney [promotes] an open

atmosphere of trust.'"   United Jersey Bank, supra, 196 N.J.

Super. at 561 (quoting Reardon v. Marlayne, 83 N.J. 460, 470

(1980)).   Accordingly, "the confidentiality of communications

between client and attorney constitutes an indispensable

ingredient of our legal system."     In re Grand Jury Subpoenas

Duces Tecum, 241 N.J. Super. 18, 27-28 (App. Div. 1989).

    The benefit of the attorney-client privilege extends to a

corporation or other organization or association, "which must

act through agents, including [its] officers and employees."

United Jersey Bank, supra, 196 N.J. Super. at 562 (quoting Macey

v. Rollins Envtl. Servs. (N.J.), 179 N.J. Super. 535, 540 (App.

Div. 1981)); see also Payton, supra, 148 N.J. at 550; N.J.S.A.

2A:84A-20(3) (defining client as "a person or corporation . . .

that, directly or through an authorized representative, consults

a lawyer . . . for the purpose of . . . securing legal service




                                 8                          A-4999-12T2
or advice from him in his professional capacity"); N.J.R.E.

504(3) (same).    The privilege, therefore, belongs to the

institution and covers confidential communications between the

entity's attorneys and its employees.       Upjohn, supra, 449 U.S.

at 395, 101 S. Ct. at 685, 66 L. Ed. 2d at 594-95.

       In Upjohn, supra, the Supreme Court held that

communications made by mid or low-level employees within the

scope of their employment to the corporation's attorney for the

purposes of aiding counsel in providing legal advice were

protected by attorney-client privilege.      449 U.S. at 391, 101 S.

Ct. at 683, 66 L. Ed. 2d at 592.      Indeed, "[t]he necessity for

full and open disclosure between corporate employees and in-

house counsel . . . demands that all confidential communications

be exempt from discovery."    Macey, supra, 179 N.J. Super. at

540.   This even includes an e-mail communication between

attorney and client during the course of a professional

relationship and in confidence.       Seacoast Builders Corp. v.

Rutgers, 358 N.J. Super. 524, 553 (App. Div. 2003).

       To be sure, while the attorney-client privilege is "clearly

extremely important," it is neither absolute nor sacrosanct.

Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E.

504(3).    Because the privilege results in the suppression of

evidence, it "is to be strictly limited to the purposes for




                                  9                           A-4999-12T2
which it exists, i.e., the need for consultation between

attorney and client without fear of public disclosure."    State

v. Humphreys, 89 N.J. Super. 322, 325 (App. Div. 1965).

However, "[w]here the privilege is applicable, 'it must be given

as broad a scope as its rationale requires.'"    United Jersey

Bank. supra, 196 N.J. Super. at 561 (quoting Eversun v. Bank of

N.Y., 99 N.J. Super. 162, 168 (App. Div.), certif. denied, 51

N.J. 394 (1968)).    And while the burden of proof is on the

person or entity asserting the privilege to show its

applicability in any given case, L.J. v. J.B., 150 N.J. Super.

373, 378 (App. Div.), certif. denied sub nom. Jacobsen v. Balle,

75 N.J. 24 (1977), there is a presumption that a communication

made in the lawyer-client relationship has been made in

professional confidence.   N.J.R.E. 504(3); see also Hannan v.

St. Joseph's Hosp. & Med. Ctr., 318 N.J. Super. 22, 28 (App.

Div. 1999); State v. Schubert, 235 N.J. Super. 212, 220-21 (App.

Div. 1989), certif. denied, 121 N.J. 597, cert. denied, 496 U.S.

911, 110 S. Ct. 2600, 110 L. Ed. 2d 280 (1990).

    One of the key issues regarding the applicability of the

privilege in this case is the purpose of Sharp's e-mail to

Tripodi.   If the purpose was to solicit legal advice, then the

privilege applies.   However, if Sharp's ultimate goal was to

secure business advice or other non-legal services, then the




                                 10                        A-4999-12T2
privilege does not apply.     See United States v. Rockwell, Int'l,

897 F.2d 1255, 1264 (3d Cir. 1990).

    In this regard, we agree with the motion judge that as an

employee of the University and acting within the scope of her

employment, Sharp's purpose in sending the e-mail to Tripodi was

to solicit his legal advice as University general counsel and,

thus, an attorney-client relationship was formed.    It is

undisputed that in the e-mail Sharp asks Tripodi to review a

draft of a fundraising letter and there would be no plausible

reason for the request other than to solicit legal advice from

counsel since Tripodi had no other involvement in University

fundraising activities.     In fact, in his capacity as general

counsel and in the course of his employment, "it [was] not

unusual for [Tripodi] to review documents relating to

fundraising activities on behalf of the University" to ensure

that those activities "[complied] with any applicable state and

federal laws and regulations" and did not "improperly purport to

bind or commit the University to future conduct."     And while

there was no certification from Sharp attesting to her purpose

in sending the e-mail, Tripodi well understood the nature of the

inquiry because he reviewed the letter and later "conveyed [his]

legal opinion regarding the letter."    Plaintiff's intimation to

the contrary, that Sharp was seeking advice from Tripodi "merely




                                  11                         A-4999-12T2
as a representative of Kean University" and not in his legal

capacity, has no support in the record.    The fact that Tripodi

had no involvement in fundraising other than reviewing such

solicitations to provide legal advice, and actually rendered

such a service in this very instance, belies the naked

suggestion that the e-mail was sent for some other, non-legal

purpose.    Clearly Sharp sent the e-mail to Tripodi because its

contents could bind the University and the communication would

not have been made but for Sharp's need for legal advice or

services.

    Equally clear is that as head women's basketball coach,

Sharp was acting within the scope of her employment when

soliciting legal advice from University counsel and,

furthermore, that her communication to him was made in

confidence.    Confidential communications are those

"communications which the client either expressly made

confidential or which he could reasonably assume under the

circumstances would be understood by the attorney as so

intended."    State v. Schubert, supra, 235 N.J. Super. at 221.

Furthermore, confidential communications may be disclosed to a

non-client or non-party who shares the client's interest,

without surrendering confidentiality.     See In re State Comm'n of

Investigation Subpoena No. 5441, 226 N.J. Super. 461, 466-67




                                 12                         A-4999-12T2
(App. Div.), certif. denied, 113 N.J. 382 (1988).    In this case,

Sharp had a reasonable expectation of confidentiality since the

document was sent internally to Tripodi, in his capacity as

university counsel.   Contrary to the dissent's view, the fact

that another University employee may have been copied on the

email does not defeat its confidential nature because as a

fellow employee with an interest in the matter, he shared

Sharp's interest in protecting the University from liability.

See Mead Data Ctr., Inc. v. U.S. Dep't of the Air Force, 566

F.2d 242, 253 n.24 (D.C. Cir. 1977) (noting that communications

circulated among more than one employee of the client can still

be confidential as long as those employees are authorized to act

for the corporation in relation to the subject matter of the

communication); cf. Coastal States Gas Corp. v. Dep't of Energy,

617 F.2d 854, 863-64 (D.C. Cir. 1980) (holding that distributing

a memo widely within an agency defeated the privilege but noting

that "[w]hen the client is by nature a group, as is true of

. . .   corporations, the courts have agreed that the privilege

should not be defeated by some limited circulation beyond the

attorney and the person within the group who requested the

advice" and advising that if disclosure had been limited to

personnel responsible for the matter at issue, "[the court]

would have a different case.").    See also Murphy v. Tenn. Valley




                                  13                        A-4999-12T2
Auth., 571 F. Supp. 502, 506 (D.D.C. 1983) (holding that an

employee's communications to general counsel requesting legal

advice remained confidential even though they were distributed

to other employees involved in the matter because "such limited

dissemination does not amount to a breach of confidentiality in

the corporate attorney-client context"); L.S.B. Indus., Inc. v.

Comm'r, 556 F. Supp. 40, 44 (W.D. Okla. 1982) (holding that

attorney-client privilege was not waived when a letter sent by

an IRS regional counsel to the DOJ, requesting legal services,

was copied to other IRS personnel involved in the

investigation).

    The closer question is whether the University waived the

attorney-client privilege upon Sharp's disclosure of the e-mail

to the NCAA.   In this regard, N.J.S.A. 2A:84A-29 (N.J.R.E. 530)

addresses waiver and provides in part:

              A person waives his right or privilege
         to refuse to disclose or to prevent another
         from disclosing a specified matter if he or
         any other person while the holder thereof
         has (a) contracted with anyone not to claim
         the right or privilege or, (b) without
         coercion and with knowledge of his right or
         privilege, made disclosure of any part of
         the privileged matter or consented to such a
         disclosure made by anyone.

The privilege, of course, can be waived only by the client and

not the lawyer.   Sicpa N. Am., Inc. v. Donaldson Enters., 179

N.J. Super. 56, 60-61 (Law Div. 1981).



                                14                        A-4999-12T2
    Generally, once privileged material is disclosed, the

privilege of non-disclosure is waived as to that matter.      See In

re Grand Jury Subpoenas Issued, 389 N.J. Super. 281, 298 (App.

Div. 2006).   Not all disclosures, however, amount to waivers.

For example, an unauthorized disclosure by someone who is not

the holder of the privilege does not generally constitute a

waiver.   In re Grand Jury Subpoenas Duces Tecum, supra, 241 N.J.

Super. at 31; In re Nackson, 221 N.J. Super. 187, 191 (App. Div.

1987), aff’d, 114 N.J. 527 (1989).

    Here, the motion judge found, without further explication,

that "[f]rom the facts submitted as part of this motion it would

appear that Sharp, as holder of the privilege, also had the

capacity to waive the privilege."     We disagree.   In the

organizational context, where the corporate employee

communicates with corporate counsel on behalf of the entity, the

corporation is the client.   Upjohn, supra, 449 U.S. at 390, 101

S. Ct. at 683, 66 L. Ed. 2d at 591-92.     Simply put, the

authority to waive the attorney-client privilege does not belong

to each and every employee of the corporation, but rather is

held by the organizational client, namely the officers and

directors of the organization.   Commodity Futures Trading Co. v.

Weintraub, 471 U.S. 343, 348, 105 S. Ct. 1986, 1991, 85 L. Ed.

2d 372, 378 (1985); United States v. Doe, 219 F.3d 175, 184-85




                                 15                           A-4999-12T2
(2d Cir. 2000).    Thus, the group of individuals who may waive

the privilege on behalf of the organizational client is

restricted to those who manage or control its activities.

    Sharp does not fit within this category as she was neither

a director nor officer of the University, nor did she serve in a

management capacity.   Moreover, Sharp was not acting under the

direction of the University when she released the document to

the NCAA, producing it through her own counsel on her own

behalf, in response to an inquiry directed specifically to her

by the NCAA.   Thus, as Sharp was not the holder of the attorney-

client privilege, it was not hers to waive.

    The motion judgment nevertheless found Sharp had implied

authorization to disclose the e-mail because the University

shared a common interest in its release and failed to object at

the time of its production, amounting to a de facto waiver of

the privilege.    We again disagree.

    Obviously, since the attorney-client privilege can only

apply to a corporation through the statements of its agents,

conversely it can be waived by the agent but only if acting

within the scope of her authority and official duties.    On this

score, we emphasize that the University neither directed nor

approved Sharp's release of the e-mail.   When she submitted the

document to the NCAA, Sharp was not acting within the scope of




                                 16                         A-4999-12T2
her employment or official duties, but rather in her own

personal interest, through her own counsel.   She did not seek

prior authorization from the University and in fact failed to

consult or notify her employer in advance of copying the

University on her submission, presumably simultaneously with its

filing.   The fact that the University did not voice an objection

at the time or take affirmative steps to reverse Sharp's

unilateral action does not defeat assertion of the privilege by

its true holder.

    We have previously found that a disclosure of a privileged

communication by another party was not authorized even when the

client did not object to the disclosure at the time it occurred.

In re Grand Jury Subpoena Duces Tecum, 241 N.J. Super. at 31;

see also Stewart Equipment Co. v. Gallo, 32 N.J. Super. 15 (Law

Div. 1954) (holding that a disclosure by a vice president and

sales manager of a corporation did not constitute waiver because

he did not seek authorization from the board of directors); Doe,

supra, 219 F.3d at 189-90 (suggesting that disclosure by a low

level employee testifying during a grand jury proceeding may not

constitute waiver when that employee was appearing in his

individual capacity, and it was not clear whether the waiver was

intentional).   Similarly here, under these circumstances, where

Sharp was clearly not acting as the University's agent or with




                                17                          A-4999-12T2
its express authorization, we do not deem her disclosure to the

NCAA to be a waiver under N.J.R.E. 530 and N.J.S.A. 2A:84A-29.

     Lastly, the motion judge, assuming the existence of the

privilege, seemed to imply that it should otherwise be pierced

because plaintiff made a showing of need, relevance and

materiality, and the fact that the information could not be

secured from any less intrusive source, citing In re Kozlov, 79

N.J. 232, 243-44 (1979).4   Kozlov's privilege-piercing analysis,

however, has been severely curtailed and its general

applicability discarded.    See State v. Mauti, 208 N.J. 519, 537-

39 (2012).   Kozlov's three-part balancing test is now "restricted

. . . to instances where constitutional rights are at stake,

notably in the criminal law context."   Biunno, Current N.J. Rules

of Evidence, supra, comment 6 on N.J.R.E. 504.   Here, there are no

constitutional rights or overriding public policy or societal

concerns to which the attorney-client privilege should yield.   We

therefore find the attorney-client privilege has not been waived in

this instance and therefore exists to protect the disputed e-mail

from disclosure.

     Reversed and remanded.

4
  In In re Kozlov, supra, our Supreme Court defined the "necessary
foundations to the valid piercing of [the attorney-client]
privilege. . . ." There must be: (1) a legitimate need of the
party to reach the evidence sought to be privileged; (2) a showing
of relevance and materiality; and (3) the information cannot be
secured from any less intrusive source. Id. at 243-44.



                                 18                         A-4999-12T2
GUADAGNO, J.A.D., dissenting

     Because I believe the email in question was not sent by

Michele Sharp for the purpose of seeking legal advice, I

respectfully dissent from the conclusion reached by the majority

that the email is protected by the attorney-client privilege.

Moreover, any privilege that may have attached to the email was

waived when Sharp submitted it, without any objection from Kean

University, to the NCAA.

     Some additional facts, not contained in the majority

opinion, inform my decision.   Hedden maintains that he first

learned about the course entitled "History of Spain" on November

22, 2010, when a Kean mathematics professor informed him that a

member of the women's basketball team was not taking a

sufficient number of credits to maintain her eligibility.1

Hedden checked the student's records and learned that her

schedule contained an "added course" entitled "History of

Spain."   Further investigation by Hedden revealed that only nine

students enrolled in the course and all were present or former

members of the women's basketball team.   Although the trip to

Spain took place in late August 2010, the course offering did

not appear on the University's registration system until


1
  Sharp maintains that she attempted to discuss the trip with
Hedden but he failed to respond to her request for guidance.
September 22, 2010, well after the fall semester had commenced,

precluding the general student body from enrolling.

    Convinced that the course violated both University

regulations and NCAA guidelines, Hedden reported the violation

to the NCAA.

    In February 2011, Hedden filed a second report with the

NCAA detailing how grades for a different player on the women's

basketball team had been changed to ensure her continued

eligibility.   The player failed a course but the "F" was changed

to "incomplete," and she remained eligible.   When Hedden

questioned the professor, the grade was changed back to "F."

Then, another professor, the same one who taught the "History of

Spain" course, changed the player's Spanish grade from a C+ to a

B+, which kept her GPA above 2.0 and maintained her eligibility.

    On May 2, 2011, the University terminated Hedden's

contract.   Among the reasons given for Hedden's discharge, was

his failure to provide adequate supervision of the women's

basketball program.   The University cited Hedden's failure to

take immediate action against the student athlete regarding her

eligibility and his failure "to timely notify his supervisor of

. . . possible NCAA violations . . . regarding the women's

basketball summer 2011 Spain/France tour."




                                2                           A-4999-12T2
    The NCAA opened an investigation, filed a complaint, and

requested that Kean and Sharp provide responses to the

allegations.   Sharp retained counsel to represent her in the

investigation.

    Included in Sharp's response to the NCAA was an email she

wrote on January 29, 2010, to Kean's General Counsel, Michael

Tripodi, which was copied to Philip Connelly, Kean's Executive

Vice-President of Operations and Hedden's immediate supervisor.

Sharp's email contained an attached draft of a fundraising

letter she intended to distribute to raise money for the trip to

Spain.   Sharp's only request to Tripodi was, "Please let me know

if it is worded ok."   Tripodi claims that he reviewed the letter

and gave Sharp a verbal response, which was not provided to us.

    The attorney-client privilege, which is codified at

N.J.S.A. 2A:84A-20 and appears in N.J.R.E. 504, provides that

"communications between lawyer and his client in the course of

that relationship and in professional confidence, are

privileged[.]"   The privilege is restricted to "[c]onfidential

disclosures by a client to an attorney made in order to obtain

legal assistance . . . ."   Fisher v. United States, 425 U.S.

391, 403, 96 S. Ct. 1569, 1577, 48 L. Ed. 2d 39, 51 (1976).

Before the privilege can be recognized, it is "vital to the

privilege . . . that the communication be made in confidence for




                                3                         A-4999-12T2
the purpose of obtaining legal advice from the lawyer."     United

States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961).

    Sharp's email meets neither of these criteria.      Asking

Tripodi if the wording of a fundraising letter is "ok" is not a

request for legal advice.     Sharp's act of copying Connelly, who

was not a member of the University's legal department, is an

indication that she did not intend to engage in a confidential

communication with Tripodi.    There is no support in the record

for the conclusion that either party had a reasonable

expectation that the email would remain confidential.

    The purpose of the email appears more in the nature of a

request for permission to fundraise, than an appeal for legal

advice.   Sharp was also seeking approval and placing the

University on notice of a trip/course offering that was sure to

generate controversy.   This conclusion finds support in Sharp's

statement to the NCAA where she indicates that she only went to

Tripodi when she could not get a response from plaintiff:

          As a result of Hedden's refusal to discuss
          the course idea and provide any help or
          suggestions    with    generating   financial
          support for the trip with Sharp, Sharp
          communicated with Kean General Counsel Mike
          Tripodi ("Tripodi") and Kean Executive Vice
          President   for   Operations   Phil  Connelly
          ("Connelly") by email on January 29, 2010.

    Sharp's response does not support Tripodi's claim that he

"conveyed [his] legal opinion regarding the letter."    Rather,



                                  4                         A-4999-12T2
Sharp indicates that her "memo resulted in Connelly contacting

[her] and offering his support for her project."   This confirms

that through her email Sharp sought and received University

support for the trip to Spain, not legal advice.

    The conclusion of the majority that "there would be no

plausible reason for [Sharp's] request other than to solicit

legal advice," ignores the clear content of the email and

assumes that all communications with someone in Tripodi's

position must be made for the purpose of seeking legal advice.

The case law analyzing the attorney-client privilege does not

support such a broad interpretation.

    "'[D]ocuments do not become cloaked with the lawyer-client

privilege merely by the fact of their being passed from client

to lawyer.'"   Tractenberg v. Twp. of W. Orange, 416 N.J. Super.

354, 376 (App. Div. 2010) (quoting United States v. Robinson,

121 F.3d 971, 975 (5th Cir. 1997), cert. denied, 522 U.S. 1065,

118 S. Ct. 731, 139 L. Ed. 2d 669 (1998)).   "Communications

which relate to business rather than legal matters do not fall

within the protection of the privilege[,]" Leonen v. Johns-

Mansville, 135 F.R.D. 94, 98 (D.N.J. 1990)), and, therefore,

"the general rule is 'while legal advice given to a client by an

attorney is protected by the privilege, business advice

generally is not.'" La. Mun. Police Emps. Ret. Sys. v. Sealed




                                5                           A-4999-12T2
Air Corp., 253 F.R.D. 300, 305 (quoting In re Nat'l Smelting of

N.J., Inc. Bondholders' Litig., 1989 U.S. Dist. LEXIS 16962, at

*18 (D.N.J. June 29, 1989)); see also United States v. Davis,

636 F.2d 1028, 1043 (5th Cir.) (communications made to an

attorney to prepare a tax return were not privileged because

such work is primarily an accounting service), cert. denied, 454

U.S. 862, 102 S. Ct. 320, 70 L. Ed. 2d 162 (1981).

    Nor, am I convinced that Tripodi's certification provides

proof that Sharp was seeking legal advice.    Placed in context,

the certification was submitted only after the motion judge

noted that

         the email does not expressly indicate that
         general counsel's review was for the purpose
         of obtaining legal advice. In addition, the
         [d]efendants did not attach a certification
         from Mr. Tripodi or Ms. Sharp indicating and
         certifying   to  their   personal   knowledge
         concerning the purpose of the email.

    Defendants' motion for reconsideration relied on Tripodi's

certification, in which he stated, "I understood from Ms.

Sharp's January 29, 2010 email that, in her official capacity as

the Women's Basketball coach, she wanted me to review the draft

letter and confirm whether any legal issues were implicated."

However, Sharp's email makes no such request and her response to

the NCAA flatly contradicts this assertion.   There is nothing in




                               6                            A-4999-12T2
Sharp's three-sentence email that supports Tripodi's claim that

she was seeking legal advice.

    This conclusion is reinforced by the University's failure

to object when Sharp enclosed the email in her January 23, 2012,

response to the NCAA Notice of Allegations.   In his

certification, Tripodi acknowledges that he received a copy of

Sharp's response to the NCAA containing the email on January 25,

2012.   He now claims that Sharp was not acting in her official

capacity as an employee of the University when she disclosed the

email to the NCAA and that disclosure "was not authorized by the

holder of the privilege, the University."   No assertion of the

attorney-client privilege was asserted by the University until

February 13, 2013, when counsel for plaintiff requested a copy

of the email which had been redacted in response to a discovery

request.

    Tripodi does not explain why the University sat idly by

when a purportedly privileged document was disclosed to the

NCAA, but reacted swiftly and emphatically when Hedden sought a

copy of the email.   Had the University truly been concerned with

Sharp's "unauthorized" disclosure of a privileged document to

the NCAA, as it now complains, some sort of objection would have

been expected.   The difference may be that Sharp's submission of

the email to the NCAA was seen by the University as helpful to




                                7                         A-4999-12T2
the common interests of Sharp and the University in avoiding

NCAA sanctions as it showed that Sharp sought advance approval

for the trip to Spain.   The use of the email in Hedden's CEPA

case, however, poses significant problems for the University

because, as the motion judge noted, it "corroborates, to some

degree, the [p]laintiff's claim that Michele Sharp worked with

several high level officials to arrange the trip without

notifying the [p]laintiff."

    The attorney-client privilege should not be the subject of

such arbitrary, selective, and opportunistic enforcement and

cannot be doffed and donned like a raincoat on a cloudy day.

See Permian Corp. v. United States, 665 F.2d 1214, 1221 (D.C.

Cir. 1981) ("The client cannot be permitted to pick and choose

among his opponents, waiving the privilege for some and

resurrecting the claim of confidentiality to obstruct others, or

to invoke the privilege as to communications whose

confidentiality he has already compromised for his own

benefit.")   To permit this selective assertion of the privilege

by the University denies plaintiff access and use of a critical

document that the University gave its implied consent to use in

another proceeding.

    Because I find the University's assertion of privilege to

be unsupported by the facts and the law, I respectfully dissent.




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