In the American system of justice, conversations between a lawyer and a client are considered privileged. The contents cannot be disclosed without the client’s consent.
Can attorney-client privilege also cover a third party, such as a benevolent association or advocacy group? The answer, according to North Carolina’s highest court, is “yes.”
A unanimous N.C. Supreme Court ruled that extending attorney-client privilege to advocacy groups and other membership organizations offers important protections to individuals and the associations. Otherwise, the groups would not be able to provide assistance in confidence, hindering their ability to protect the interests of their members.
Timothy Foxx was a police officer for the town of Fletcher. In October 2006 he told his superiors of a fellow officer’s misconduct and was demoted and then suspended. Foxx contacted the Southern States Police Benevolent Association, of which he was a member, for assistance.
Among the services the SSPBA provides its members is help in grievance and disciplinary matters, including assistance from SSBPA staff, aid in securing counsel, and payment of legal and court costs.
Lawyers and staff of the SSPBA and its North Carolina affiliate, the North Carolina Police Benevolent Association, helped Foxx file a grievance against the town. The SSBPA also referred Foxx to Shannon Lovins, an Asheville attorney, and paid a portion (the first $100 per hour) of Lovins’ fees.
After the town fired Foxx, Lovins helped Foxx in administrative appeals and filed a federal lawsuit against Fletcher and several town officials, including its police chief, Langdon Raymond. The federal lawsuit was unsuccessful, and was dismissed in December 2008.
That, however, did not end the matter. Raymond had sued the SSPBA, NCPBA, and John Midgette, the executive director of the NCPBA, in state court, contending they had committed the torts of maintenance and champerty — that is, they stood to gain from Foxx’s federal lawsuit for which they provided support. Raymond sought to have the defendants turn over documents about their relationships with Foxx and Lovins to help prove his claims.
In response, the SSPBA asserted that an attorney-client privilege existed, potentially blocking the release of materials Raymond sought. Superior Court Judge Mark Powell held that the “asserted attorney client privilege is overruled and has been waived,” but certified the issue for immediate appeal. The N.C. Court of Appeals affirmed Powell’s rulings on other grounds in a short, unpublished decision.
The N.C. Supreme Court agreed to hear an appeal, and the high court overturned the lower court rulings. “We hold that a tripartite attorney-client relationship exists here, and as such certain communications between them are privileged,” wrote Justice Paul Newby for the court.
Traditionally, an attorney-client privilege exists between two parties, a lawyer and the client he or she represents. Courts have recognized, though, that tripartite attorney-client relationships can exist, most typically when an insurance company hires an attorney to represent one of its insured against a claim.
The key, Newby noted, is that “the interests of both the insured and the insurer in prevailing against the plaintiff’s claim are closely aligned.” The same concept applies in this case, the high court held.
“The SSPBA has a goal of protecting and promoting the livelihood of its members, and it was advancing its purpose by assisting with the employment dispute at Foxx’s request.” The high court also noted the broader importance of attorney-client privilege involving organizations like the SSPBA.
“Without such a relationship confidential statements made by individuals seeking assistance from advocacy organizations would be unprotected and discoverable in litigation,” Newby added.
The case is Raymond v. N.C. Police Benevolent Association, Inc. (230PA10-1).
Michael Lowrey is an associate editor of Carolina Journal.