Employer Social Media Practices/Policies and the NLRA

In recent years, as the use of social media has exploded, the National Labor Relations Board (“NLRB”) has received allegations of improper discipline of employees for social media postings as well as complaints condemning employer social networking policies. We briefly discuss a few of those decisions below.

In what came to be known as “the first Facebook case,” American Medical Response of Connecticut, Inc., No. 34-CA-12576, an employee criticized her supervisor in a Facebook post for denying her Union representation, which triggered responses from co-workers voicing their support. The employee was suspended the following day and later discharged. The NLRB alleged in a complaint that the employer’s internet and social media policies were overly broad and violated Section 7 of the National Labor Relations Act (the “NLRA” or “Act”), which gives employees the right “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The NLRB’s complaint also alleged that the employee was unlawfully terminated for engaging in protected concerted activity when she posted on Facebook. The NLRB stressed that employees must be permitted to discuss the terms and conditions of their employment with co-workers. The NLRB asserted that the employer violated the NLRA when it discharged the employee for posting comments on Facebook that prompted support from other employees. The case settled when the employer agreed to substantially narrow the scope of its social media policies.

The NLRB addressed whether an employee could be fired for selecting the “like” option on a Facebook post in Three D, LLC d/b/a Triple Play Sports Bar and Grille, 361 NLRB No. 31. The NLRB found that the employer, a bar and restaurant, violated Section 8(a)(1) of the NLRA by unlawfully discharging two employees for their protected, concerted participation in a Facebook discussion in which they criticized perceived errors in their employer’s tax withholding calculations because such communications constituted concerted activities protected by the NLRA.

One of the discharged employees was terminated for “liking” a Facebook post by a former employee containing the discussion. Another employee used an expletive to describe the company co-owner. In finding the terminations unlawful, the NLRB stated that the test set out in Atlantic Steel, 245 NLRB 814, by which the Board determines whether an employee loses the Act’s protection for contemptuous workplace conduct that occurs during an otherwise protected activity, is not well-suited to address statements involving employees’ off-duty, off-site use of social media to communicate with other employees. Under theAtlantic Steel test, the Board balances the following four factors to determine whether an employee loses the Act’s protection:

  1. the place of the discussion;
    2. the subject matter of the discussion;
    3. the nature of the employee’s outburst; and
    4. whether the outburst was provoked by the employer’s unfair labor practices.

The Board stated that the first factor alone supported its conclusion that the Atlantic Steel framework should not be applied to the type of employee activities in this case.

Instead, the NLRB applied the tests articulated by the U.S. Supreme Court in the Jefferson Standard (346 U.S. 464(1953)) and Linn (383 U.S. 53 (1966)) cases to the employees’ comments. In Jefferson Standard, the Court had upheld the discharge of employees who publicly attacked the quality of their employer’s product and practices without tying such criticisms to a pending labor controversy. In Linn, the Court had limited state law remedies for defamation during a union-organizing campaign to those situations where the plaintiff could show that “the defamatory statements were circulated with malice” and caused damage. Linn v. Plant Guards Local, 383 U.S. at 64-65. Here, the NLRB concluded that the employees’ statements were neither disloyal nor defamatory under those standards because they neither disparaged the employer’s products or services or undermined its reputation and therefore did not lose the Act’s protection.

The Board also held that the company’s internet/blogging policy, which stated that “engaging in inappropriate discussions about the company, management, and/or co-workers” might constitute a violation of the law “and is subject to disciplinary action, up to and including termination of employment,” was overly broad and unlawfully restricted employees in the exercise of their rights under the Act.

The NLRB has also found that employees can lose protection under the NLRA if their conduct advocates insubordination. In Richmond District Neighborhood Center, 361 NLRB No. 74, the NLRB held that employees who engaged in specific discussions of planned insubordination on Facebook lost the protection they otherwise would have enjoyed under the NLRA. After two employees detailed their plans to disrupt the workplace and flaunted their disregard for their employer’s policies and procedures on Facebook, the discussions were reported by a co-worker who took screenshots of their exchange. Although the NLRB found the employees’ Facebook posts to be a concerted activity, the Board concluded that the employees had lost the protection of the NLRA since their statements advocated insubordination. The NLRB also considered the protracted length of the exchange between the employees and the detailed nature of the specific acts they advocated when determining that their statements had lost protection.

richard friedman picRichard B. Friedman is the managing partner of the five lawyer employment litigation and counseling and business litigation firm Richard Friedman PLLC.  Rich and his colleagues handle the following kinds of matters:

  • Counseling, drafting, and negotiating on behalf of senior and mid-level executives in connection with employment, severance, and consulting agreements;
  • Preparation of employee handbooks, codes of conduct, and social media policies on behalf of employers;
  • Employment litigation on behalf of employers and individuals aligned with employers;
  • FINRA arbitrations on behalf of finance personnel; and
  • A wide variety of business litigations, particularly in the New York County Commercial Division on whose Advisory Committee Rich and fifteen or so other judicially appointed practitioners serve with the nine judges of that court.

Rich has served as a legal commentator on CNN, FOX, and several other major networks on employment and litigation-related issues.  He is a member of the NYCLA Board of Directors and the Task Force NYCLA in The 21st Century.

Mr. Friedman moderated How to Litigate  Non-competes and Other Disputes Over Restrictive Covenants on Tuesday, September 27, 2016; 6:00 PM – 8:00 PM.  This CLE was co-sponsored by NYCLA’s In-House and Outside Counsel Committee.  The faculty for this program included Katherine Blostein, Outten & Golden LLP; Jyotin Hamid, Debevoise & Plimpton LLP; Robert N. Holtzman, Kramer Levin Naftalis & Frankel LLP; David E. Schwartz, Skadden, Arps, Slate, Meagher & Flom LL.  

NYCLA Civil Court Practice Section Honors Hon. Anthony Cannataro, Hon. Ellen Gesmer, and Civil Court employees, Peter Di Genova and Che Che Solivan

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The NYCLA Civil Court Practice Section had its annual dinner on June 20, 2016 at the beautiful Battery Gardens Restaurant.  Our honorees were the Honorable Anthony Cannataro, Honorable Ellen Gesmer, and Civil Court employees, Peter Di Genova and Che Che Solivan.

The New York City Civil Court is a special place.  The Civil Court Practice Section seeks to recognize those individuals whose hard work and valuable services help make the Civil Court the unique and wonderful institution that it is.  The Section also seeks to educate lawyers and the public about the Civil Court and offers practical advice about how to achieve fair and just results for the thousands of litigants who have cases there.

Over the past year, the Section has heard from several fine speakers who have recounted the important work performed in the Civil Court, including practitioners, judges, and our county clerk.  We have worked on projects designed to help attorneys and litigants understand the role and purposes of Civil Court, as well as get a better understanding of how to navigate through its many technical and complex proceedings.

Our honorees reflect the ideals and work ethic of our Section.  Judge Cannataro is the Supervising Judge of the New York County Civil Court and has helped initiate many important improvements to the functioning of the Court.  Justice Ellen Gesmer has risen from a respected Civil Court judge to the Appellate Division.  Serena Springle, the Chief Clerk of New York County Civil Court, accepted the Melvin C. Levine Distinguished Service Award on behalf of court employees, Che Che Solivan, an Associate Court Clerk assigned to the Housing Division who has been working in the courts since July 1994 and Peter DiGenova, a Senior Court Clerk assigned to the Civil Division who has been working in the courts since November 1992.  Additional speakers included the Honorable Fern Fisher, the Honorable John J. Kelley (Co-Chair of the Civil Court Practice Section) and NYCLA President, Carol Sigmond, Esq.

The Co-Chairs of the successful dinner were Suzanne Adams, who also serves as a Co-Chair of the Section, and Nicholas Moyne.  The weather was perfect and a good time was had by all!  We look forward to your participation in next year’s dinner.  Until then, please join our committees, as they are an essential part of the NYCLA experience.


Many employers try to limit former employees’ actions at the conclusion of the employment relationship through restrictive covenants. A restrictive covenant is a contractual agreement restricting the post-employment activities of a former employee for a fixed period after the termination of an employment relationship in order to protect the employer’s legitimate business interests.

A. Protectable Interests

Non-compete agreements offer the widest range of protection for employers by limiting a prior employee’s ability to work for a competitor after the employment relationship ends. However, this type of restrictive covenant is often the most difficult to enforce and is generally disfavored in New York. New York courts will enforce non-compete provisions only to the extent necessary to protect an employer’s legitimate interests and where they are reasonable in time and geographic area. Such courts consider the protection of the following kinds of information to be legitimate protectable interests:

1) trade secrets;

2) confidential customer relationships; and

3) confidential customer information.

For example, in Ticor Title Ins. Co. v. Cohen, 173 F.3d 63, 71 (2d Cir. 1999), the court noted that an employer has sufficient interest in retaining its current customers to support a covenant not to compete where the employee’s relationship with the customers is such that there is a substantial risk that the employee may be able to divert all or part of the business.

B. Temporal and Geographic Restrictions

New York courts have repeatedly held that temporal restrictions of six months or less are reasonable. See Ticor Title Ins. Co. v. Cohen, 173 F.3d at 70 (2d Cir. 1999); Natsource LLC, 151 F.Supp.2d at 470-71 (three-month non-compete). However, courts have also enforced non-competes of three years or more, usually where geography is limited. In Novendstern v. Mount Kisco Med. Grp., 177 A.D.2d 623, 576 N.Y.S.2d 329 (1991), the court found that a covenant restricting a physician from competing with his previous employer was enforceable because the prohibition on the physician’s practicing in his specialties for three years was in a limited geographic area.

To determine whether a non-compete provision is reasonable in geographic scope, courts in New York examine the particular facts and circumstances of each case. For example, in Natsource LLC v. Paribello, 151 F.Supp.2d 465, 471-72 (S.D.N.Y.2001), the court was willing to enforce very broad geographic restrictions on employees where the “nature of the business requires that the restriction be unlimited in geographic scope,” so long as the duration of those restrictions was short. (Emphasis added). However, in Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC, 813 F. Supp. 2d 489 (S.D.N.Y. 2011), the court held that the non-compete provision in a fitness center operator’s employment agreement with prior employees, which prohibited employees from working at a competitor center anywhere in world for ten years following employment at center, was unenforceable since it was unreasonable in terms of duration and geographic scope.

C. Consideration

New York courts have also examined whether there was sufficient consideration, whether the agreement was incidental to the sale of a business, and whether an employee was preparing to compete to determine if a non-compete was reasonable. Such courts have found that future employment constitutes sufficient consideration to support a covenant not to compete.See Poller v. BioScrip, Inc., 974 F. Supp. 2d 204 (S.D.N.Y. 2013) (holding that “the fact that a restrictive covenant agreement is a condition of future employment does not automatically render such an agreement coercive and unenforceable”). Similarly, in Ikon Office Solutions v. Leichtnam, 2003 U.S. Dist. LEXIS 1469, *1, 2003 WL 251954 (W.D.N.Y. Jan. 3, 2003), the court found that the non-compete covenant was enforceable because the employee was an at-will employee who received continued employment as consideration. Moreover, financial benefits and an employee’s receipt of intangibles such as knowledge, skill, or professional status, are also sufficient consideration to support a non-compete provision under New York law. See Arthur Young & Co. v. Galasso, 142 Misc. 2d 738, 741 (Sup. Ct. N.Y. County 1989).

D. Selling a Business and Preparing to Compete

New York courts are most likely to enforce non-compete agreements that are incidental to the sale of business. See Mohawk Maint. Co. v. Kessler, 52 N.Y.2d 276 (1981) (stating that courts give covenants not to compete made in connection with the sale of a business and its accompanying goodwill “full effect when they are not unduly burdensome”).

New York courts have held that an employee preparing to compete violates a non-compete provision where affirmative steps have been taken that would give the individual a head start on competing once the restricted period ends. For example, in World Auto Parts, Inc. v. Labenski, 217 A.D.2d 940 (4th Dep’t 1995), the court found that conduct such as making personal loans to the principal owners of competitors and divulging to competitors price information acquired while working with the former employer constituted preparatory behavior that violated the non-compete agreement. However, in some instances, employees may prepare to compete prior to their departure provided that they do not use their employers’ time, facilities or proprietary secrets to do so. See Stork H & E Turbo Blading, Inc. v. Berry, 932 N.Y.S.2d 763 (2011).

richard friedman pic

Richard Friedman is a former AMLAW 100 employment and business litigation partner and an experienced trial lawyer.  He counsels employers on all kinds of employment-related matters and assists them and individuals aligned with employers in litigation through his five lawyer firm, Richard Friedman PLLC. Mr. Friedman also assists senior and mid-level executives with employment, severance, and consulting agreements and represents well compensated employees in FINRA arbitrations.  Mr. Friedman has served as a legal commentator on CNN, FOX, and several other major networks on employment and litigation-related issues.  He is a member of the NYCLA Board of Directors.  Mr. Friedman can be reached at rfriedman@RichardFriedmanlaw.com.  His complete biography is available at www.richardfriedmanlaw.com.


As president of NYCLA, I have been invited to say a few words about the committee and Stewart Aaron, the 58th President of NYCLA, the 2016 David Hinshaw Award winner.

From the time that Stewart first joined the Federal Courts Committee, he was core contributor, rising to committee chair.

The Federal Courts Committee has traditionally been an active and important committee at NYCLA, commenting on the Federal Rules of Procedure, hosting monthly dinners for the bar to meet and talk with federal judges from both the southern and eastern district and supporting court initiatives including the Loretta Preska Security Pavilion.

In 2008, Stewart became the Vice President of NYCLA. He worked hard during his time on the ladder. In May 2010, Stewart became the 58th president of NYCLA. He was an outstanding president, active on a policy and administrative front, advancing what is today the Loretta Preska security pavilion, the crisis of court budget cuts, gun control and judicial retirement age, to name but a few. Stewart brought social media to NYCLA.

It is a testament to Stewart’s presidency, that now, some 5 years later, he is beginning his 9th year of continuous service on NYCLA’s Executive Committee, having been invited to serve on that committee by the last 3 presidents, including me.

I cannot speak for my two immediate predeccessors but I will say for my self, that I value Stewart’s judgment, knowledge of the bar world, his knowledge of the administrative side of the law business and his ability as a lawyer. Stewart has provided solid advice on a variety of subjects, including most remarkably, the need to tweet about NYCLA events, which I have learned to do, fat fingers and all.

I cannot imagine anyone more deserving of recognition from his peers for his many contributions than Stewart Aaron.

The Perfect Pet Trust: Saving your Dog from the Unexpected

This article is about pet trusts, the legal documents that secure an animal’s uninterrupted care. The goal is to guide the reader through the process of writing a definitive pet trust, and to highlight the potential mistakes and pitfalls that could invalidate these documents.

What is a pet trust? The Pet Protection Agreement® pet trust[1] allows an individual, the Pet Owner, to name a Pet Guardian and, if they wish, to leave funds providing for the continued maintenance of animals, in the event that the Pet Owner is unable to.[2]

The pet trust that is enacted by mention in a will only requires one simple sentence such as “I leave my dog to Jane Smith.” But a note of caution, instructions for care are unenforceable when the pet trust is triggered by the will.

A pet trust that is written by an attorney is created in their discretion, should be freestanding apart from the will and requires in addition to the pet owner and pet guardian, a trustee and funds.

The American Pet Products Association (“APPA”)[3] estimates that about sixty-two percent of U.S. households have pets, and an astounding $60.59 million dollars will be spent on pets in the United States in 2015.[4] This is three times the amount of money that was spent on pets approximately twenty years ago.[5]

Clearly, times have changed and attitudes are evolving.[6] An ever growing number of Americans consider their pets as more than just animals. According to The Harris Poll,[7] there is a tendency for people to elevate their pets to the status equivalent to that of a family member.[8] Just look at any Pet Owner’s smartphone and you will see photos of their pets, along with other family members.[9]

Because people are passionate about their pets, providing uninterrupted care for them is often a concern.[10] When something happens to a Pet Owner, such as an accident, illness, or death, a pet trust becomes especially critical.[11]

Sadly, if there is no legal document or binding plan in place, the court may make decisions for what it terms the abandoned animal.[12]
According to The American Society for the Prevention of Cruelty to Animals (“ASPCA”),[13] approximately 7.6 million companion animals enter animal shelters nationwide every year: 3.9 million are dogs and 3.4 million are cats.[14] Of those, approximately 31 percent (2.7 million: 1.2 million dogs and 1.4 million cats) are euthanized.[15]

The concept of pet trusts is relatively new and it has received significant coverage in the press.[16] This developing interest has been dominated by celebrity cases, such as those of Leona Helmsley,[17] Oprah Winfrey and Joan Rivers, all of whom provided for the care of their animals.[18] What is not as widely covered is the explosion of like-mindedness among Americans who are just as interested in providing care for their beloved pets through the available, legally enforceable, entities referred to as pet trusts.[19]

Pets are the ultimate equalizer; regardless of the kind of pet, the wealth of the pet’s owner or the city they live in, Pet Owners need to secure the legal protection they need for their pets.[20]

The large number of pet trusts created each year in lawyers’ offices around the country, as well as through online services such as LegalZoom.com that help individuals create their own legal documents, is further evidence of the developing interest in pet trusts.[21]

There are three kinds of legal documents referred to as pet trusts as shown in the following overview and comparison chart:[22]



Will Only Valid AfterDeath

Freestanding Pet Trust Freestanding Valid During Life and After Death Pet Protection
Valid During Life and After Death
Must be drafted by an attorney No Yes No
Funds must be used for pets No Yes Yes
Court may reduce funds Yes Most of the time No
Must include funds No Yes No
Legal in all states No Yes Yes
Valid after Pet Owner’s Death Yes Yes Yes
Valid during Pet Owner’s Life and after Pet Owner’s death No Yes Yes


When a Pet Owner seeks the assistance of a professional, it is imperative that the advice provided regarding the choice of pet trust secures the pet’s future.[23] Attorneys need to keep up with legal developments in state statutes, legislation, and other laws pertaining to animals.[24]Lives are at stake.

My wish is to ensure that every animal is guaranteed a secure future. Everything you need to know about the three kinds of pet trusts can be found in the full article by clicking here.

headshot_Rachel__HirschfeldRachel Hirschfeld is a nationally renowned expert in estate planning and a passionate advocate for people and their pets. She is a frequent author and lecturer, often quoted in newspapers, legal journals and other media outlets including: ABC Nightline, CBS Early Show, The Wall Street Journal, CNN, The Today Show, The New Yorker, Newsweek, Dow Jones, Newsday, The New York Sun, Bottom Line Retirement, The National Academy of Elder Law Attorney’s Journal, Consumer Digest, and Fox News.   Ms. Hirschfeld’s lectures in continuing legal education have been selected for live web casting by Thomson Reuters’ publishing house. Ms. Hirschfeld has taught at Cornell Law School. Ms. Hirschfeld founded and co-chairs the New York County Lawyers Association’s Animal Law Committee.


[1] Created by Rachel Hirschfeld, this agreement © and ® 2016 Pet Protection Agreement LLC. All rights reserved. Patent pending.

[2] Rachel Hirschfeld, Frequently Asked Questions, PETTRUSTLAWYER.COM, http://www.pettrustlawyer.com/faq.php#one (last visited Oct. 24, 2015) [hereinafter “Hirschfeld, FAQ”].

[3] Pet Industry Market Size & Ownership Statistics: U.S. Pet Industry Spending Figures & Future Outlook, AMERICAN PET PRODUCTS ASS’N, http://www.americanpetproducts.org/press_industrytrends.asp (last visited Oct. 24,


[4] Id.

[5] Id.

[6] See id.

[7] Regina A. Corso, Pets Really Are Members of the Family, THE HARRIS POLL (June 10, 2011), http://www.theharrispoll.com/health-andlife/Pets_Really_Are_Members_of_the_Family.html

[8] Id.

[9] Stephanie Sindicich, 14 Signs You Are Obsessed With Your Dog (In a Good Way!), ONE GREEN PLANET, http://www.onegreenplanet.org/animalsandnature/signsyou-are-obsessed-with-your-dog-in-a-good-way/ (last visited Oct. 28, 2015, 1:59 PM).

[10] Hirschfeld, FAQ, supra note 1.

[11] Id.

[12] Sharon L. Peters, Pet Talk: For Pets’ Sake, Include them in your Estate Planning, SPECIAL FOR USA TODAY (Dec. 17, 2010, 6:11PM), http://usatoday30.usatoday.com/yourlife/pets/2010-12-07-pettalk07_ST_N.htm.

[13] Pet Statistics: How many pets are in the United States? How many animals are in shelters?, THE AMERICAN SOC’Y FOR THE PREVENTION OF CRUELTY TO ANIMALS http://www.aspca.org/about-us/faq/pet-statistics (last visited Oct. 27, 2015).

[14] Id.

[15] Id.

[16] Rachel Hirschfeld, Estate Planning Issues Involving Pets, GPSOLO (2009), http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/petestateplanning.html [hereinafter “Hirschfeld, GPSOLO”].

[17] Cara Buckley, Cosseted Life and Secret End of a Millionaire Maltese, N.Y.TIMES, June 10, 2011, at A20.

[18] Joan Rivers’ Estate is a Prime Example of Proper Pet Planning, INSIGHT LAW (Oct. 8, 2014), https://insightlaw.net/current-events/joan-rivers-estate-is-a-primeexample-of-proper-pet-planning; Scott C. Soady, Share Your Pet Trust Wishes With Family, SAN DIEGO ESTATE PLANNING LAWYER BLOG (Feb. 9, 2013), http://www.sandiegoestateplanninglawyerblog.com/2013/02/share_your_pet_trust_wishes_wi.html.

[19] Hirschfeld, GPSOLO, supra note 15.

[20] Id.

[21] See Suzanna de Baca, Pet Trusts: Should You Leave Money to the Family Dog?, HUFFINGTON POST (June 4, 2013), http://www.huffingtonpost.com/suzannade-baca/pet-trusts-should-you-lea_b_3015036.html.

[22] Hirschfeld, GPSOLO, supra note 15; Why Do Pets Need a Pet Protection Agreement, PETPROTECTIONAGREEMENT.ORG, http://petprotectionagreement.org/_downloads/FAQs.pdf (last visited Nov. 16, 2015); What’s The Difference Between a Pet Protection Agreement® and a Pet Trust?, LEGALZOOM, https://www.legalzoom.com/knowledge/petprotection/faq/pet-protection-agreement-vs-pet-trust (last visited Oct. 26, 2015).

[23] See Rachel Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection Agreements, PETTRUSTLAWYER.COM, http://www.pettrustlawyer.com/press/Protect_Your_Pet’s_FuturePet_Trusts_and_Pet_Protection_Agreements.php (last visited Nov. 14, 2015) [hereinafter Hirschfeld, Protect Your Pet’s Future: Pet Trusts and Pet Protection


[24] Id. (for legal developments the author, an attorney, is following).

NYCLA Announces the Formation of The Center for Corporate Governance at the New York County Lawyers Association

NYCLA is pleased to announce the formation of The Center for Corporate Governance, dedicated to educating legal practitioners, their clients and others with an interest in corporate governance, in the best practices for corporations, their officers and in particular, their boards. The principles of corporate governance are evolving and in recent years quite quickly. Officers and board members need to be aware of their responsibilities and duties as the legal and practical landscape of what is acceptable and unacceptable conduct for boards and officers changes.

Many legal practitioners have clients who are among those who have such duties and responsibilities and counsel must continue to educate themselves to be able to advise those clients. The Center for Corporate Governance and NYCLA have decided it is important for them to play a key role in this process not only with their members, but also in the legal community in the greater New York area.

While The Center and NYCLA recognize that there are other outstanding organizations playing a role in bettering Corporate Governance, we intend to work with a number of them to advance the goal of increasing the understanding of good Corporate Governance. The process of coordinating with various groups including universities, industry groups, foundations, and non-profit and for profit entities has already begun.

The initial focus of the Center will be on CLE programs, with a great inaugural program held on May 3, The Significance of Recent Developments in Delaware Corporate Governance Law and What Practitioners and Their Clients Need to Know. As time goes on, however, the Center also expects to expand to other forms of education as well.

For more information please contact Greg Markel, Senior Counsel, Cadwalader, and Chairman of the Center for Corporate Governance at the New York County Lawyers Association. Mr. Markel can be reached at greg.markel@cwt.com .

NYCLA and NACDL file AMICUS BRIEF urging reversal in the case of Nordstrom v. Ryan in the Ninth Circuit discussing constitutional rights and attorney-client privilege

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On June 22nd, the New York County Lawyers Association filed an amicus brief in the Ninth Circuit in support of death row inmate and Plaintiff-Appellant Scott D. Nordstrom.  My office collaborated with principal drafter and Counsel of Record, Elliot Dolby Shields, Chair of our Civil Rights & Liberties Committee, to challenge the constitutionality of an Arizona Department of Corrections (ADC) policy that impacts the rights of inmates and their properly marked outgoing legal mail.  We were approached about our interest in writing this brief following publication of our report on attorney-client e-mail monitoring in the federal prison system, which called upon the Federal Bureau of Prisons to extend the same protections afforded to traditional legal mail, to e-mail communications between attorneys and their incarcerated clients (also penned by Mr. Shields). This report garnered national attention when it was formerly endorsed by the American Bar Association February of this year.

The New York County Lawyers Association is a not-for-profit membership organization of approximately 8,000 members committed to applying their knowledge and experience in the field of law to the promotion of the public good and ensuring access to justice for all.  Our amicus brief in the matter of Nordstrom v. Ryan is no exception.  ADC’s outgoing legal mail policy requires inspection of all outgoing legal mail, but is devoid of any procedural safeguards, does not legitimately further the interests of penal administration and automatically destroys confidentiality and waives attorney-privilege.  If the Ninth Circuit affirms in favor of the ADC, it would create a Circuit split—a circuit standing alone in allowing such broad authority to its prison officials to read the substance of inmates’ properly addressed legal mail.

The National Association of Criminal Defense Lawyers agreed.  Signing on to our brief, we (i) explore and argue for the proper constitutional framework through which the District Court should have viewed, and the Ninth Circuit must view, the ADC policy—ultimately asserting that outgoing legal mail cannot be opened or inspected absent good cause (see Turner v. Safley, Procunier v. Martinez and Thornburgh v. Abbott), (ii) contend that in addition to unjustifiably obstructing prisoners’ 1st amendment right to communicate with their attorneys, 6th amendment right to adequate defense counsel, and 14th amendment right to access to the courts, the ADC policy also raises serious 5th, 8th and 14th Amendment procedural due process concerns and (iii) demonstrate that the unconstitutionality of the ADC policy affects not just Mr. Nordstrom, but all inmates—with particular discussion for others on death row and pretrial detainees (with respect to whom prison officials are held to a stricter standard).

We conclude: “The abuse of power by prison officers is inevitable; such abuse (and risk of such abuse) should be avoided and battled.”  We’ve seen this in New York and across the country.  Mr. Nordstrom’s rights were violated, but the consequences of such a policy are broader and effect all inmates (including inmates not yet convicted of crimes—a staggering 63% nationwide according to the Department of Justice).  We will continue the battle against abuse and injustice.  Will you join us?

For our amicus brief go here.

For our attorney-client email report go here.

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