On October 27, 1997, Claimant was incarcerated at Elmira Correctional Facility
and had been transported to the Chemung County Courthouse for a court
appearance. Claimant and his attorney, Richard Rich, were behind closed doors
in a conference room while Correction Officers Tipton and Andrews were standing
guard outside the door for security purposes. Claimant and Attorney Rich began
arguing loud enough for Officer Tipton to overhear the conversation through the
closed door. Officer Tipton issued a misbehavior report alleging that Claimant
allegedly stated to Attorney Rich "mess up this case and I'm not going to be in
jail forever, I know where you live"; and when Mr. Rich asked if Claimant was
threatening him, Claimant responded "it's a promise". (Claim, Exhibit B). The
misbehavior report cited Claimant's violation of facility rule 102.10 which
prohibits inmates from making threats under any circumstances. Claimant was
found guilty at his Tier III hearing and was sentenced to keeplock for 60 days
and a loss of all privileges.
Claimant filed and served this Claim alleging the State's negligence, invasion
of privacy, and breach of attorney-client privilege. Claimant's contends that
his conversation with Attorney Rich was privileged and could not be disclosed
without his consent nor was the threat a facility matter subject to misbehavior
reports. The State moves for summary judgment on the grounds that the actions
of the Correction Officers are entitled to immunity and, in any event, the
communication at issue was not protected by the attorney-client privilege. On a
motion for summary judgment, the moving party must present evidentiary facts
that establish the party's right to judgment as a matter of law, while the
opposing party must present evidentiary proof in admissible form that
demonstrates the existence of a factual issue. (Friends of Animals v
Associated Fur Mfrs., 46 NY2d 1065, 1067-1068).
The State's first ground for summary judgment is that the disciplinary measures
imposed were consistent with the governing rules and regulations and are thereby
covered by immunity. (Arteaga v State of New York, 72 NY2d 212). It is
well-settled that the State can be liable for disciplinary measures if an inmate
is placed on restrictive confinement in a manner that violates the governing
rules and regulations. (Ramirez v State of New York, 171 Misc 2d 677,
681). Initially, the Court notes that Claimant does not allege in either his
Claim or opposing papers that the State violated any Facility rule or regulation
governing the conduct or timing of the underlying hearing. The only possible
procedural problem alluded to in the Claim is that Attorney Rich never responded
to the Hearing Officer's messages for him to appear as a witness. However, the
Hearing Officer completed a form entitled "Superintendent's & Disciplinary
Hearings - Witness Interview" in which his unsuccessful attempts to contact Mr.
Rich were documented and which was signed by Claimant. (Affirmation of Earl F.
Gialanella, AAG, Exhibit B). Consequently, Claimant has failed to present any
evidentiary proof in admissible form that the State violated any rule or
regulation in the course of imposing this disciplinary measure. As such, the
State is entitled to summary judgment on the grounds that the disciplinary
measures were covered by immunity, since they were imposed in a manner
consistent with the governing rules and regulations.
Additionally, the State also contends that the attorney-client privilege did
not attach to the communication at issue as a matter of law. The general
principles of the attorney-client privilege can be outlined into four points.
(CPLR 4503). First, an attorney-client relationship must be established.
Second, the communication at issue must be confidential and made for the purpose
of obtaining legal advice or services. Third, the party asserting the privilege
holds the burden of proving each element of the privilege. Fourth, even where
the technical requirements of the privilege are satisfied, it may, nonetheless,
yield in a proper case, where strong public policy requires disclosure.
(Matter of Priest v Hennessy, 51 NY2d 62, 68-69). Here, the first
element, the existence of an attorney-client relationship, is not in dispute.
Next, for attorney-client privilege to be applicable the communication at issue
must have been confidential and made for the purpose of obtaining legal advice
or services. (Matter of Jacqueline F., 47 NY2d 215, 219). Here,
Claimant's statement was clearly threatening bodily harm to his lawyer if the
results of his case were not satisfactory and, as such, was of a non-legal
nature. By posing a threat toward his lawyer, Claimant shifted the conversation
away from its original purpose of legal representation, and as a result,
relinquished his attorney-client privilege relative to this statement.
The second issue that arises out of this element is whether the
communication was confidential. The State asserts that Claimant could not have
intended his statement to be confidential since he spoke at a level loud enough
to be heard through a closed door. Moreover, the State contends that the
correction officers, for their part, were performing a routine duty of providing
security and did not do anything to intentionally eavesdrop on the conference
between Claimant and his attorney. (People v Harris, 57 NY2d 335, 343,
cert denied 460 US 1047). On the other hand Claimant argues he was not
allowed a private conference where his conversation would not be overheard.
However, in this Court's view, a question of fact arises as to whether the level
of the conversation between Claimant and Attorney Rich was loud enough for the
correction officers to accidently overhear. Nevertheless, the State is entitled
to summary judgment on the issue of immunity as set forth hereinabove.
Accordingly, in view of the foregoing, it is ORDERED that the State's Motion
for Summary Judgment, Motion No. M-62925, is GRANTED and Claim No. 97490 is