NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4999-12T2

GLENN HEDDEN

Plaintiff-Respondent,

v.

KEAN UNIVERSITY, MATTHEW CARUSO

and PHILIP CONNELLY,

Defendants-Appellants.

Argued September 23, 2013 - Decided

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.

October 24, 2013

APPROVED FOR PUBLICATION

October 24, 2013

APPELLATE DIVISION
2 A-4999-12T2

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.
3 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 
4 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 email. 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.
5 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 email 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.
6 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.
7 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). 
8 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 
9 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 inhouse 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 
10 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 
11 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 
12 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 
13 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 
14 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).
15 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
16 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 attorneyclient 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 
17 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 
18 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.
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.
2 A-4999-12T2

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."
3 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 
4 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, 
5 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. JohnsMansville, 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 
6 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 
7 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 
8 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.