Saturday, August 31, 2019

No Privilege

The Kentucky Supreme Court affirmed and remanded in part in a matter of attorney-client privilege involving a denied promotion at the University of Louisville School of Medicine’s Division of Gynecologic Oncology.

On October 23, 2009, Dr. Helm initiated a faculty grievance procedure against two of his supervisors, Dr. Christine Cook and Dr. Lynn Parker. Appellant Ruby Fenton (Fenton) had served as an attorney for the University prior to the grievance proceedings, and she was retained to represent Dr. Cook and Dr. Parker in the grievance proceedings. Her attorney fees were paid by the University; fees for Dr. Helm’s attorney were not. Under the applicable personnel rules, the University was designated as a neutral arbiter in the faculty grievance process. Thus, Dr. Cook and Dr. Parker were represented by an attorney who had an ongoing attorney-client relationship with the University, the neutral arbiter in the process.

On May 17, 2010, the University’s grievance hearing panel unanimously found that Dr. Helm had been placed on leave in a manner totally contrary to the University’s written policies. The panel recommended that the University comply with Dr. Helm’s contract through its conclusion on July 31, 2010, and that Dr. Helm be allowed to re-submit his application for full professorship.

On June 18, 2010, Dean Halperin refused to accept the panel’s recommendation that Dr. Helm be allowed to re-submit his application, stating it was moot because Dr. Helm’s contract would expire on July 31, 2010. Dean Halperin had notified Dr. Helm in February of that year that his faculty appointment would not be renewed. As Dr. Helm had been advised, the University did not renew his faculty appointment, and his last day at the University was July 31, 2010.

Dr. Helm sued and sought discovery of extensive communications between the attorney and a host of University employees

During discovery, Dr. Helm served a subpoena upon Fenton seeking all written communications and notes reflecting communications between Fenton and any person associated with the University relating to the faculty grievance proceedings. The University and Fenton refused to produce the communications and asserted that the requested information was protected by the attorney-client privilege and the work-product privilege.

The trial court initially sided with the University but changed its view and ordered the discovery.

Here the University appealed and sought mandamus

if a trial court orders the production of communications protected by the attorney-client privilege, the aggrieved party is entitled to a writ halting the production of the such communications.

Reviewing the conclusion of the Court of Appeals

...apparently accepting in full the trial court’s findings of fact, the Court of Appeals denied the writ, stating that “[b]ased upon our review of the record, this Court cannot conclude that the trial court abused its discretion by finding that the University failed to carry its burden of demonstrating the applicability of the attorney client privilege.” This appeal by the University and Fenton followed.

The court here agreed that no attorney-client relationship was proven but remanded

The Court of Appeals, however, did not rule upon the University and Fenton’s request for protection of the subject communications based upon the work-product privilege. Thus, we remand to the Court of Appeals for its ruling on that issue.

(Mike Frisch)

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