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UNITED STATES v. INTERNATIONAL BHD. OF TEAMSTERS

April 24, 1997

UNITED STATES OF AMERICA, Plaintiff,
v.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, et al., Defendants. IN RE: APPLICATION NO. IX OF THE ELECTION OFFICER



The opinion of the court was delivered by: EDELSTEIN

 EDELSTEIN, District Judge :

 This opinion emanates from the voluntary settlement of an action commenced by plaintiff United States of America (the "Government") against, inter alia, defendants International Brotherhood of Teamsters ("IBT") and the IBT's General Executive Board embodied in the voluntary consent order entered March 14, 1989 (the "Consent Decree"). The goal of the Consent Decree is to rid the IBT of the hideous influence of organized crime through a two-phased implementation of the Consent Decree's various remedial provisions.

 In the first phase of the Consent Decree, these provisions provided for three court-appointed officers: the Independent Administrator to oversee the Consent Decree's provisions, the Investigations Officer to bring charges against corrupt IBT members, and the Election Officer to supervise the electoral process that led up to and included the 1991 election for IBT office. In the second phase of the Consent Decree, the Independent Administrator was replaced by a three-member Independent Review Board, but the position of Election Officer remained, and was authorized to supervise the 1996 IBT elections.

 Currently before this Court is Application No. IX of the Election Officer For A Declaratory Judgment Regarding Claim of Privilege ("Application IX"). For the following reasons, this Court finds that Application IX should be granted.

 BACKGROUND

 Under the terms of the Consent Decree, the Election Officer has the responsibility to investigate, to evaluate, and, in the event of a violation, to remedy all protests concerning IBT elections. See (Rules for the 1995-96 IBT International Union Delegate and Officer Election, Art. XIV, ("Election Rules").) On February 4, 1997, after Ron Carey ("Carey") was re-elected as IBT President over James Hoffa, Jr. ("Hoffa"), Hoffa filed an election protest with the Election Officer asserting that certain contributors to the Campaign to Re-elect Ron Carey (the "Carey Campaign") were made by "employers" under the Election Rules, and that therefore their contributions were prohibited under the Election Rules. (Declaration of Barbara Zack Quindel In Support of Election Officer Application IX, United States v. International Bhd. of Teamsters, 88 Civ. 4486 ("Quindel Decl.") P 4 (Apr. 10, 1997).) Upon receipt of this protest, the Election Officer commenced an investigation into its allegations. Id.

 Since June 8, 1995, the New York law firm of Cohen, Weiss & Simon ("CW&S" or the "firm") has acted as counsel to the Carey Campaign. (Declaration of Susan Davis, United States v. International Bhd. of Teamsters, 88 Civ. 4486 ("Davis Decl. II") P 1 (Apr. 15, 1997).) Jere B. Nash III ("Nash") of Jackson, Mississippi was the Carey Campaign's Campaign Manager during the 1996 IBT election. (Quindel Decl. P 5.) In the course of the Election Officer's investigation into the protest concerning the contributions to the Carey Campaign, Susan Davis ("Davis"), a partner at CW&S, informed the Election Officer that Davis and other attorneys at her firm had communications with Nash relevant to the Election Officer's investigation. Id. Davis further informed the Election Officer that IBT President Carey, the Carey Campaign's authorized representative, had instructed Davis to disclose her firm's communications with Nash to the Election Officer, waiving the Carey Campaign's attorney-client privilege as to those communications. Id.

 Davis represents that Carey authorized CW&S, on behalf of the Carey Campaign, to cooperate fully with the Election Officer and to provide the Election Officer with access to all information relevant to the campaign contribution investigation. (Davis Decl. II P 13.) Nash, however, contends that his communications with CW&S are subject to his personal attorney-client privilege, and that CW&S may not disclose those communications to the Election Officer without Nash's explicit waiver, which he refuses to provide. (Opposition of Jere Nash to Election Officer Application IX, United States v. International Bhd. of Teamsters, 88 Civ. 4486 ("Nash Opp.") at 1-2 (Apr. 15, 1997).) CW&S is willing to disclose the substance of all its communications with Nash. (Davis Decl. II P 13.) Because of Nash's assertion of privilege, however, CW&S, after conferring with its own outside counsel, has elected not to reveal the substance of any of its communications with Nash absent an order from this Court. Id. ; (Declaration of Susan Davis, United States v. International Bhd. of Teamsters, 88 Civ. 4486 ("Davis Decl. I") P 4 (Apr. 9, 1997).)

 The communications at issue took place on several occasions during March 1997. (Davis Decl. I P 5.) On March 6, 1997, a CW&S associate was present during a telephone conversation in which Mr. Nash was questioned by an Election Office investigator regarding the alleged campaign contribution violations. Id. P 5(a). On March 7, 1997, CW&S asked Nash to meet at the firm's offices on Saturday March 8, or Sunday March 9, 1997, in order to discuss the campaign contributions. Id. P 5(b). Nash was unable to meet on either of those dates, but agreed to meet that Monday, March 10, 1997. Id. On March 10, 1997, four CW&S attorneys, Stanley Berman ("Berman"), Stephen Presser ("Presser"), Nathaniel Charney ("Charney") and Davis, met with Nash at CW&S's offices. Id. P 5(c). Davis asserts that at this meeting she "informed Mr. Nash that [CW&S] had asked to speak with him as counsel to the Carey Campaign and that [CW&S] was investigating allegations concerning the [election protest] that had recently been brought to the attention of the Carey Campaign on behalf of the [Carey] Campaign and Ron Carey." Id. Davis also declares that the CW&S attorneys present at this meeting informed Nash that their conversations were "privileged," by which the attorneys assumed that the privilege belonged to the firm's client, the Carey Campaign, not to Nash. Id. This assumption, however, was never communicated to Nash. (Hearing Transcript, United States v. International Bhd. of Teamsters, 88 Civ. 4486 ("Tr.") 22 (Apr. 17, 1997).) Nash was also cautioned at the meeting that his disclosure of the substance of the meeting to individuals "outside the Carey Campaign could alter the 'privileged' nature" of the communications made during the meeting. (Davis Decl. I P 5(c).) Once again, however, the CW&S attorneys "understood this privilege to belong to the Carey Campaign rather than to any individual employed by the Carey Campaign," and, once again, they neglected to inform Nash of their understanding. Id.

 On March 12, 1997, CW&S attorneys Berman, Presser and Charney had a brief telephone conversation with Nash. Id. P 5(d). At the end of this phone call, Nash asked the attorneys whether this conversation had been privileged. Id. Nash was advised by Berman and Presser that it was privileged, but, yet again, the attorneys did not explain that, in their view, the privilege belonged to the Carey Campaign, not to Nash. Id. On March 13, 1997, CW&S "engaged and consulted outside counsel concerning the status of [its] conversations with Mr. Nash and other legal issues that the firm had encountered in connection with the [election] protest" regarding the allegedly illegal campaign contributions. Id. P 5(e). On March 14, 1997, Davis informed Nash that CW&S "was making a full report to Ron Carey concerning [CW&S's] conversations with Mr. Nash on March 10, 1997, and March 12, 1997." Id. P 5(f). Nash did not object to the firm's disclosure, and acknowledged that he was aware that the firm would report the communications to Carey. Id. On March 18, 1997, CW&S informed Nash that he should "consider engaging personal counsel with respect to further inquiries of him from [the Election Officer]." Id. P 5(g). Nash asserts that, upon hearing this information, he stated his belief that CW&S was his personal counsel. (Declaration of Jere Nash In Opposition to Election Officer Application No. IX, United States v. International Bhd. of Teamsters, 88 Civ. 4486 ("Nash Decl.") P 4 (Apr. 15, 1997).) In response to Nash's statement, Davis "told Mr. Nash that CW&S represented the Carey Campaign as an entity, rather than individuals within the campaign," and that the firm had never represented Nash individually. (Davis Decl. II P 11.)

 Through both telephone and personal communications over the course of the next week, CW&S attorneys apprised the Election Officer and the United States Attorney's Office of the firm's situation with Nash. Id. PP 5(h)-(l). On March 19, 1997, Davis informed the Election Officer that Nash would likely engage personal counsel and that "certain of [the firm's] conversations with Mr. Nash were arguably subject to privilege claims by Mr. Nash, that [the] firm had sought advice of counsel with respect to those privilege issues, and that the firm believed that such privilege issues should be resolved through a prompt judicial proceeding." Id. P 5(h). On March 21, 1997, Davis confirmed to the Election Officer that Nash had, in fact, engaged personal counsel and asserted the attorney-client privilege over his March 10 and 12, 1997, conversations with the CW&S attorneys. Id. P 5(i). Davis also notified the Election Officer that "the firm had explained to the U.S. Attorney's Office that the appropriate course of action was to seek judicial resolution of such claims before a court of competent jurisdiction." Id. On March 22 and 26, 1997, Davis and Presser met with the Election Officer to describe "the facts and circumstances surrounding Mr. Nash's privilege claim," CW&S's own consultation with counsel, the need for "prompt judicial resolution of Mr. Nash's claim," and the "proper procedural approach" to such a resolution. Id. PP 5(j), (l). On March 24 and 27, 1997, CW&S attorneys met with at least one unidentified Assistant United States Attorney to discuss Nash's privilege claim, as well as a possible judicial resolution of it. Id. PP 5(k), (m).

 On April 10, 1997, the Election Officer filed the instant application with this Court. The Election Officer's application seeks, pursuant to her authority under the Consent Decree, a declaratory judgment that Nash possesses no attorney-client privilege with respect to his communications with CW&S. (Quindel Decl. P 1.) Because of the importance of a prompt adjudication of this issue to the Election Officer's ongoing investigation into the alleged improprieties of the Carey Campaign, this Court set an expedited submission schedule and held a hearing ("the hearing") concerning this matter on April 17, 1997.

 At the hearing, this Court made two preliminary rulings before proceeding to the core issue of the validity of Nash's asserted privilege. First, this Court granted Nash's unopposed motion to intervene as of right under Federal Rule of Civil Procedure 24(a)(2), based on this Court's finding that the hearing jeopardized Nash's interest in his asserted attorney-client privilege. (Tr. 3.) Second, relying upon the substantial body of case law affirming this Court's jurisdiction over all facets of the Consent Decree, this Court rejected Nash's challenge to this Court's jurisdiction to issue a declaratory judgment adjudicating this matter to assist the Election Officer's investigative responsibilities under the Consent Decree. Id. at 7-8. Finally, after hearing lengthy testimony and argument, this Court found that Nash cannot assert the attorney-client privilege over his communications with CW&S, and granted the Election Officer's application in summary fashion. Id. at 85-86. The authority and reasoning supporting this Court's two preliminary rulings are fully set forth on the record, id. at 3-8, and therefore, they require no further explanation here. The instant Opinion and Order is thus dedicated to fully explaining the legal and factual foundations for this Court's determination that Nash cannot invoke the attorney-client privilege to protect his communications with CW&S regarding the allegations of improper campaign contributions.

 This Court must resolve three distinct issues in the instant Opinion and Order: (1) whether Nash may assert the attorney-client privilege over his communication with CW&S; (2) whether a declaratory judgment should issue adjudicating Nash's ability to assert that privilege; and (3) whether CW&S breached its ethical obligations under New York's Code of ...


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