MANHATTAN (CN) – A policy that the New York City Board of Education instituted earlier this year forces teachers to effectively abandon their right to attorney-client privilege in order to obtain legal representation, their union claims in court.
Michael Mulgrew, the president of the United Federation of Teachers, AFT Local 2, filed the 18-page petition on Tuesday claiming that New York City, its Law Department and its Board of Education have tried to lure his union’s members into a “trap.”
“The policy places public employees between the proverbial rock and a hard place by forcing them to pay the heavy price of prospectively waiving the fundamental right to attorney-client privilege or forego the statutory right to legal defense (and, often, stemming from that defense, indemnification),” the union’s attorney Michael Del Piano wrote. “The policy turns the duty of confidentiality and loyalty owed by an attorney to his or her client – bedrock legal principles of our free society – on its head, making the attorney an informant for the employer.” (Parentheses in original.)
The union traces the policy to an email that the Board of Education’s chief executive for labor relations, Lawrence Becker, sent to the union’s general counsel on May 14.
“The Becker email states, among other things, that based upon information learned in the course of prospective or actual representation of the employee, the Law Department will make referrals to the employee’s agency for disciplinary action,” the petition states. “The policy further states that the content of such referrals will be considered the agency’s attorney-work product, effectively turning the employee’s privileged information into the agency’s privileged information.”
Becker is not named as a defendant in the case.
Seeking an order voiding the policy, the union claims that the policy violates municipal law, education law, the Attorney Rules of Professional Conduct and the City Administrative Procedure Act under the New York City Charter.
“An employee who accepts representation pursuant to the policy is essentially unrepresented,” the petition states. “Indeed, the policy would chill and impede the strong public policy in favor of open dialogue between a client and his/her attorney, eviscerate the attorney-client privilege, and constitute unreasonable limitations on the scope of representation in light of employees’ statutory rights.”
The teachers want a judge to nullify it and force the city to identify whose confidential information has been disclosed.
New York City Law Department spokesman Nick Paolucci defended the policy as in the interest of public safety.
“The Law Department recently clarified its longstanding policy to make it absolutely clear that when we learn about inappropriate or criminal activity during the course of our representation of city employees, we will refer that misconduct to the appropriate city agency or authority,” Paolucci wrote in an email. “It is in both the public and the city’s interests to do so and is consistent with the law. We will discuss the matter with the UFT.”