and its "investigatory procedures are not a proper subject of collective bargaining." Id. In this case, both the federal grand jury that has subpoenaed the PBA witnesses and the federal prosecutor who seeks to question them before that body are even more independent from management than was the Inspector General's Office in Department of Justice. Neither the collective bargaining process nor the state laws that protect that process can limit the scope of a federal criminal investigation. Indeed, in Department of Justice, the parties apparently conceded that a union privilege "would not shield a conversation between an employee and his union representative from disclosure . . . before a grand jury." Id.
Having reviewed what appears to be the pertinent legal authority, this court finds that movant has not demonstrated that society's interest in encouraging confidential communications between union members and their representatives is so strong as to outweigh its interest in having all relevant evidence of criminal conduct explored. The court finds no union privilege to bar the examination of the subpoenaed witnesses before the grand jury.
III. Attorney-Client Privilege
The attorney-client privilege is generally understood to apply where legal advice of any kind is sought "from a professional legal advisor in his capacity as such." United States v. International Bhd. of Teamsters, 119 F.3d at 214. It is undisputed that the subpoenaed union officials are not licensed attorneys and that no police officer who consulted them reasonably believed them to be authorized to practice law. Thus, whatever representation, advice, or guidance police officers may have sought from these union officials, their communications do not fall within the strict parameters of the attorney-client privilege. See Walker v. Huie, 142 F.R.D. at 501 (rule that evidentiary privileges be "strictly construed" precludes distortion of common law definition of "lawyer" to include a union official representing police officer at disciplinary proceeding); see also Proposed Rule of Evidence 503(a)(2) ("lawyer" defined as a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation"); Moorhead v. Lane, 125 F.R.D. 680 (C.D. Ill. 1989) (attorney-client privilege did not extend to inmate communications to "jailhouse lawyer").
The PBA and the police officers nevertheless urge this court to extend the attorney-client privilege to the facts of this case. They submit that any conversations the officers may have had with the subpoenaed witnesses were part of the process necessary to have the PBA provide members with counsel to defend them in possible criminal proceedings.
The purpose of the attorney-client privilege is to "promote full and frank conversations between attorneys and their clients," thereby encouraging "observance of the law" and aiding "in the administration of justice." Commodity Futures Trading Comm'n v. Weintraub 471 U.S. 343, 348, 85 L. Ed. 2d 372, 105 S. Ct. 1986 (1985). Because the privilege "stands in derogation of the public's 'right to every man's evidence, . . . it ought to be strictly confined within the narrowest limits consistent with the logic of its principle.'" In re Horowitz, 482 F.2d 72, 81 (2d Cir.), cert. denied, 414 U.S. 867, 38 L. Ed. 2d 86, 94 S. Ct. 64 (1973) (quoting 8 J. Wigmore, Evidence §§ 2192, 2291 at 70,554 (1961)); accord United States v. International Bhd. of Teamsters, 119 F.3d at 214. In applying these principles to the PBA's request for an expansion of the attorney-client privilege, the court notes that the affidavits submitted by the subpoenaed witnesses do not specify what particular role each of them played in securing counsel for the four officers who are before the court. Neither do they indicate how the conversations between the witnesses and the police officers promoted full and frank conversations between those officers and their lawyers.
It is, of course, undisputed that all four officers are presently represented in state criminal proceedings by lawyers retained by the PBA. Apparently, a member's right to PBA-retained counsel derives not from the union's Constitution or By-laws but from its collective bargaining agreement with the City of New York. Although the parties have not provided the court with a copy of this agreement, counsel for the subpoenaed union officials represented at oral argument that the City provides the PBA with funds that the union then uses when it is necessary to retain counsel for police officers, as is the case when officers face possible criminal charges arising out of their job performance. There appears to be no discretion in the PBA to deny counsel to an officer who is the subject of a criminal investigation and, for that reason, no policy requiring union officials to make any particular findings before honoring a request for counsel. In short, an officer might wish to consult with a union official because he values the opinions and advice of that representative, but nothing before the court indicates that the officer is obliged to discuss his conduct with a union representative as a prerequisite to securing PBA-retained counsel. The court therefore rejects the PBA's argument that the process for securing PBA appointed counsel requires extension of the attorney-client privilege to a union official's conversations with a police officer.
In In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 921 (8th Cir. 1997), the Eighth Circuit declined to extend the attorney-client privilege to White House officials who spoke with government attorneys about matters under criminal investigation. The court explained that "an official who fears he or she may have violated the criminal law and wishes to speak with an attorney in confidence should speak with a private attorney, not a government attorney." Id. So in this case, an officer who wishes to ensure that anything he says relating to a criminal matter is shielded by the attorney-client privilege should wait to discuss the particulars with the counsel retained for him by the PBA and not rely on some general assumption that any communications he has with a union representative are somehow shielded from grand jury inquiry.
In further support of their argument that the police officers' conversations with non-lawyer union representatives should be covered by the attorney-client privilege, the PBA relies on Judge Friendly's decision in United States v. Kovel, 296 F.2d 918 (2d Cir. 1961). In that case, an attorney retained an accountant to assist him in the legal representation of a client. The court recognized that a trained accountant might sometimes have to participate in conversations with a client if an attorney was to understand and address a client's legal needs.
Accounting concepts are a foreign language to some lawyers in almost all cases, and to almost all lawyers in some cases. Hence the presence of an accountant, whether hired by the lawyer or by the client, while the client is relating a complicated tax story to the lawyer, ought not to destroy the privilege, any more than would that of [a foreign language interpreter]; the presence of the accountant is necessary, or at least highly useful, for the effective consultation between the client and the lawyer which the privilege is designed to permit.
Id. at 922. Kovel is, however, factually distinguishable from this case in a number of important respects. First, the relationship between the client and a licensed attorney was already established before the challenged conversations with the accountant took place. Second, the conversations with the accountant were at the lawyer's express request. Finally, the sole purpose of the conversations with the accountant was to assist the attorney in his representation of the client. In this case, many if not all of the conversations between the subpoenaed union representatives and the police officers who now assert an attorney-client privilege took place before those officers ever entered into any confidential relationship with a licensed attorney. There is no evidence that any attorney requested the PBA officials to question the police officers. In sum, the court finds that movant has failed to demonstrate that the conversations were had to assist an attorney in the representation of a client. Instead, it appears that the conversations were to assist the union representative in understanding the member's problem so that the representative could then advise the member as to his rights and options, including his right to private counsel retained by the union. This court is simply not prepared to extend the attorney client privilege to those conversations a person may have with a third party -- whether a union representative, a parent, a trusted teacher, or a close friend -- in seeking that party's guidance about a potential legal problem or assistance in procuring a lawyer.
The union submits that its obligation to provide an attorney for its members makes it akin to an insurer. It cites cases in which an insured's conversations with an insurer have been held to be privileged. See Linde Thomson Langworthy Kohn & Van Dyke, P.C. v. Resolution Trust Corp., 303 U.S. App. D.C. 316, 5 F.3d 1508 (D.C. Cir. 1993); Kandel v. Tocher, 22 A.D.2d 513, 256 N.Y.S.2d 898 (1st Dep't 1965). Not insignificantly, neither of these cases recognizes a privilege in the context of a criminal investigation. In fact, as the Court of Appeals noted in the Linde Thomson case, "federal courts have never recognized an insured-insurer privilege as such" in any context. 5 F.3d at 1514. The particular claim of an insured-insurer privilege was rejected in Linde Thomson. Only in dicta did the court state that "where the insured communicates with the insurer for the express purpose of seeking legal advice with respect to a concrete claim, or for the purpose of aiding an insurer-provided attorney in preparing a specific legal case, the law would exalt form over substance if it were to deny application of the attorney-client privilege." Id. at 1515. It is not clear that the case before this court even falls within this dicta. The conversations between the subpoenaed witnesses and various police officers have not been detailed in the affidavits submitted to the court and so the court cannot say whether the officers were seeking "legal advice with respect to a concrete claim" or only general advice about their rights and obligations. Further, the affidavits submitted to this court do not establish that the conversations were undertaken with the express purpose of assisting "[a union]-provided attorney in preparing a specific legal case."
In any event, the relationship between insured and insurer is not sufficiently analogous to that of union member and representative to support the claim of privilege in this case. As Judge Breitel explained in Kandel, liability insurance is unique in that "it is litigation insurance." Kandel v. Tocher 22 A.D.2d at 515, 256 N.Y.S.2d at 900. It is "an institutionalized substitute for the individualized attorney-client relationship in litigation or contemplated litigation." Id. at 517-18, 256 N.Y.S.2d at 902. The practical consequence is that the insured and insurer often merge into a single party in any court proceeding. This is because it is the insurer who may well be obliged to pay any damages that are awarded. Membership in a union cannot be described as "an institutionalized substitute" for the attorney-client relationship. The majority of the services the PBA provides for its members are unrelated to criminal litigation. Most importantly, the union can never stand in the shoes of one of its members when that officer faces criminal charges. Unlike an insurance company, which may have to pay damages if its insured's liability is established, the PBA will not be liable at law if one of its members is convicted on criminal charges.
Finally, the PBA suggests that conversations about potential criminal matters between union officials and members are covered by the attorney-client privilege because the official is, in fact, acting as the representative of the client or the attorney in that discourse. It notes that Proposed Rule of Evidence 503(b) stated that the attorney-client-privilege would shield "confidential communications made for the purpose of facilitating the rendition of professional legal services to the client, (1) between himself or his representative and his lawyer or his lawyer's representative, or . . . (4) between representatives of the client or between the client and a representative of the client . . . ." This court understands the "lawyer's representative" provision of the proposed rule to formalize the holding in Kovel. For reasons already stated, this court rejects the argument that a union official acts as the representative of a criminal defense lawyer when no lawyer has even been contacted. The court also declines to expand the attorney-client privilege to include as client "representatives" any third-party whose assistance a person seeks in helping him obtain a lawyer.
Proposed Rule 503(b) did not define a client representative.
Most litigation concerning client representatives arises in the context of legal entities other than individuals, most particularly, corporations, who cannot act except through representatives. The courts' particular concern is with identifying those representatives who can fairly be equated with the "client" for purposes of the privilege. See In re Bieter Co., 16 F.3d 929, 935 (8th Cir. 1994) (in holding that a private consultant to a partnership was a client representative entitled to the protections of the attorney-client privilege, the court noted that a test it had previously adopted to determine who within a corporation was covered by the attorney-client privilege was "no less instructive as applied to a partnership, or some other client entity was (as opposed to an individual), and its employees" (emphasis added)); see generally Eutectic Corp. v. Metco, Inc. 61 F.R.D. 35 (E.D.N.Y. 1973) ("where the dominant purpose of the communication is to facilitate the rendition of legal services to the client, and the communication itself or the substance thereof is transmitted to the lawyer shortly thereafter, the fact that the communication, at its inception, is within the corporate structure rather than directly with the attorney does not automatically defeat the privilege"). A private person, however, generally has no need for a representative to communicate with an attorney. Only in extraordinary cases, as, for example, where a client needs an interpreter, or where he is so seriously injured that he cannot deal directly with counsel, see Hendrick v. Avis Rent A Car Sys., Inc., 944 F. Supp. 187, 189 (W.D.N.Y. 1996), has the attorney-client privilege been extended to the designated representative of an individual client. That is not this case. Each police officer was competent to discuss his concerns fully and frankly with licensed counsel without the assistance of a third party. Indeed, the affidavits of the subpoenaed witnesses do not indicate that they did anything to facilitate the communication between attorney and client.
Under such circumstances, the attorney-client privilege does not extend to shield an officer's communications with union representatives.
The PBA has failed to demonstrate that conversations between the subpoenaed union officials and various police officers about an incident for which the union retained private criminal defense lawyers for the officers are in any way privileged. The motion to preclude grand jury inquiry into these conversations is denied.
Dated: Brooklyn, New York
March 2, 1998
UNITED STATES DISTRICT JUDGE