Smith v. Port Authority of New York and New Jersey

Background

Rebecca Smith asked for discovery concerning communications between Megan Lee, counsel for the Port Authority of New York and New Jersey, and Christina Callahan, the Port Authority’s director of human resources. Smith alleged that Lee directed Callahan to speak with Smith about her legal claims while knowing Smith was represented by counsel, allegedly to pressure Smith to withdraw the claims. Smith argued that any attorney-client privilege had been waived.

Privilege and Alleged Contact

The defendants asserted attorney-client privilege. The court explained that the privilege generally applies when a confidential communication is made between a client and lawyer for the purpose of obtaining or providing legal advice. It concluded that the communications between Callahan, as a representative of the defendant agency, and Lee met those requirements because they were confidential communications made while preparing to defend the lawsuit.

The court explained that privilege may be waived in circumstances including when a client testifies about the communication, places the attorney-client relationship directly at issue, or relies on the lawyer’s advice as part of a defense. The court found that Smith alleged none of those circumstances.

Smith also accused defense counsel of constructively violating Rule of Professional Conduct 4.2, which generally restricts a lawyer’s contact with a person represented by another lawyer. The court found that Smith offered only conjecture and speculation that Lee directed Callahan to contact her. Lee denied directing Callahan to communicate with Smith about settling Smith’s legal claims. The court therefore could not conclude that Lee violated Rule 4.2.

Disposition

The court further held that even a Rule 4.2 violation would not automatically waive the defendants’ attorney-client privilege. It distinguished the case Smith cited, explaining that the court in that case prevented use of a declaration obtained through an unauthorized communication but did not find a privilege waiver. Here, Smith did not allege that an improper release of claims had been obtained, and the defendants were not seeking to use a document created from the alleged communication.

Judge Jennifer E. Willis denied Smith’s request for discovery because the requested material was privileged, Smith identified no specific facts justifying waiver, and defense counsel adequately denied violating Rule 4.2. The court stated that Smith had leave to refile if new information later suggested that defense counsel had engaged in prohibited conversations with her.