National Rifle Association headquarters in Fairfax, Virginia. Photo: Nicole S Glass/Shutterstock.com

Law professor and author Arthur Miller, appearing as an expert in civil procedure Thursday, agreed with the National Rifle Association's argument that the New York Attorney General's Office cannot prevent the gun-rights group from reviewing potentially privileged material in the possession of its former advertising agency Ackerman McQueen, which has received a state subpoena.

The subpoena is related to the Attorney General's Office's ongoing investigation into the NRA and its financial affairs, which was publicly confirmed in April.

In an October hearing, lawyers with Brewer, Attorneys & Counselors, which is representing the gun rights advocacy group, argued that the NRA had a special relationship with Ackerman that went beyond standard ad agency work. Ackerman routinely received legal advice from NRA attorneys, the lawyers said, and the agency may also possess the names of NRA donors.

"[Ackerman] continues to have an active and ongoing fiduciary duty to the NRA, which includes a duty to preserve the confidentiality of the NRA's information absent the NRA's consent," wrote Sarah Rogers, a partner in Brewer's New York office, in an October court filing.

New York County Supreme Court Justice Melissa Crane is currently considering the issue, but Brewer partner William Brewer III said he thought it was important to reach out to Miller after reviewing the hearing transcript and noticing that some of Crane's questions could be answered through further briefing.

In his expert affirmation, Miller, university professor at New York University School of Law, wrote that New York state officials were wrong to ask the court for relief under a statute dealing with disobedience of a subpoena, because Ackerman did comply with the subpoena until the dispute about NRA review arose.

"CPLR Section 2308(b) does not authorize the court to prohibit AMQ from disclosing its production to the NRA, nor to restrain the NRA from seeking to access the documents by lawful means, including the assertion of its common-law or contractual rights," wrote Miller, who previously spent 36 years as a professor at Harvard.

"Nor does CPLR Section 2308(b) empower the OAG to obtain documents subject to attorney-client privilege, the work product doctrine, or any privilege under the First Amendment."

An organization's communication with its public relations firm may be privileged if the firm was involved in high-level decisions about strategy, as the NRA claims Ackerman was, Miller wrote.

The Brewer team has said the Attorney General's Office is seeking to conduct a secret investigation with this request, and Miller wrote that it would create a "dangerous precedent" if the request is successful.

Letting the Attorney General's Office move ahead would diminish "the procedural and substantive rights of others who may come into disfavor with New York State authorities," Miller wrote.

The NRA would create a privilege log as part of its review, Brewer pointed out. He said the Attorney General's Office would be welcome to challenge anything that had been withheld, as shown in the log.

A spokesman for the Attorney General's Office declined to comment. In a letter accompanying Miller's filing, Rogers invited the office to file a response.

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