DECISION AND JUDGMENT This action was commenced by plaintiff Michael Dornan (hereinafter “Plaintiff or “Dornan”) in January 2016, nearly nine years ago, and concerns the location of a fence that the Fort Ann Central School District, through their Board of Education and Superintendent of Schools (hereinafter defendants are collectively referred to as “District”) installed on its property. Plaintiff claims that the District installed the fence in a manner that was intended to retaliate against him for engaging in protected activity under the First Amendment to the United States Constitution. (Complaint, ’182-98) Lewis B. Oliver, Esq. (“Oliver”) and “The Oliver Law Firm” (“Oliver Firm”) has represented plaintiff both prior to and subsequent to the commencement of this action. [T. 74; Exhibit 5, 121; Exhibit 6, 3-4.]1 Girvin & Ferlazzo, P.C. (hereinafter “Girvin Firm”) has represented the District both prior to and subsequent to the commencement of this action [T. 11] and has represented the defendants throughout this lawsuit. Attorney Scott P. Quesnel, Esq.(“Quesnel”), who is a partner with the Girvin Firm, has consistently appeared on behalf of the defendants in this lawsuit since it began. [T. 11-12] On June 15, 2022, the District’s Board of Education voted to approve an agreement with Bartlett, Pontiff, Stewart and Rhodes (“Bartlett Firm”) for legal services to be provided during the 2022-2023 school year. [T. 55; Exhibit A] On March 29, 2023, Oliver submitted a letter to the Court regarding the scheduling of depositions which he copied to Quesnel as counsel for the District. [T. 11-12; Exhibit B] On March 30, 2023, Quesnel sent a letter to Oliver in which he formally advised him that communications between defendants and the Girvin Firm concerning this lawsuit were privileged attorney-client communications that would continue to be withheld unless the Court ordered defendants to disclose them. [T. 12-15; Exhibit C; Exhibit D] On or before April 19, 2023, Dornan spoke with Oliver and sought his advice about making a public presentation to the District’s Board of Education regarding the issue of privileged communications in this action. [T. 15-16, 76-77; Exhibit 5, 18-20] Oliver discouraged Dornan from speaking to the Board in public and instead suggested it would be better to provide the District with a written memorandum. [T. 16, 76; Ex. 5, 119] Oliver prepared an eleven-page memorandum (hereinafter “memorandum”) addressed to Justin Hoskins (“Hoskins”) as the new Superintendent of the District.2 [NYSCEF No. 13; T. 15, 84; Exhibit D]. The stated purpose of the memorandum was “to request the Board of Education of The Fort Ann School District to waive its attorney-client privilege of confidentiality with former counsel, Girvin & Ferlazzo and its attorneys, concerning the litigation between the School District and Michael Dornan.” [NYSCEF No. 13; Exhibit D] Oliver provided the memorandum to Dornan, who delivered it to Hoskins along with copies of depositions which are referenced in the memorandum. [T. 21-22, 57-59, 79]. Oliver did not provide a copy of the memorandum to Quesnel, anyone at the Girvin Firm or any member of the District’s current general counsel at the Bartlett Firm. [NYSCEF No. 19; Exhibit D, p. 11; Exhibit 6, 20]. The memorandum states that the request is made “on a confidential basis” and for “obvious reasons” the defendants should not “communicate with attorney Lanchantin or attorney Quesnel or Girvin & Ferlazzo regarding this request.” [NYSCEF No. 13; Exhibit D, p. 11]. On April 19, 2023, the Board of Education discussed the memorandum during executive session, outside the presence of the Girvin Firm, Quesnel and the Bartlett Firm. [Exhibit E, p. 4] On May 15, 2023, Quesnel became aware of the memorandum and the circumstances under which it had been provided to his client which prompted him to submit a letter to the Court raising concern over Oliver’s violation of Rules of Professional Conduct 4.2. [Exhibit F] On June 29, 2023, the prior Court held a conference to discuss this concern at which time Oliver admitted that he prepared and caused the memorandum to be sent to the Board. [Exhibit 1, p. 32] On January 17, 2024, this case was reassigned from Hon. Glen T. Bruening to Hon. Robert J. Muller. On March 13, 2024, the Court advised the parties that a hearing had been scheduled for April 10, 2024 on the issue of whether Oliver violated the Rules of Professional Conduct. On March 15, 2024, Oliver filed a Motion to Compel seeking, inter alia, an order from the court compelling the defendants to disclose the privileged attorney-client communications that were the subject of the memorandum [NYSCEF No. 51.3 On March 18, 2024, Quesnel submitted a letter to the Court requesting an extension of time to respond to plaintiff's voluminous motion and in response the Court issued a Letter Order staying all motion practice and discovery until after the April 10, 2024 hearing. [NYSCEF No. 7] The hearing was held on April 10, 2024 and by stipulation of the parties the Court received in evidence Exhibits A through K, I through 7 and NYSCEF Nos. 5, 8, 9. [T. 4-5] The Court also heard testimony from Oliver, I-Ioskins, and Dornan. During the hearing, Oliver advised the Court that he attached two deposition transcripts to the memorandum, that of former Superintendent Froats and Attorney Kristin Lanchantin, and those were not placed into evidence. Oliver requested permission to file those transcripts with the Court after the conclusion of the hearing and the Court granted his request to supplement the record. [T. at p. 43, 85] Those depositions are marked as Exhibits 8 and 9, respectively, and also identified as NYSCEF Nos. 42 and 43. At the hearing, Oliver testified that he erroneously believed that the Girvin Firm and Quesnel represented the former superintendent of the District and former president of the District’s Board of Education individually, not in their official capacities. [T. 25]. Oliver acknowledged because these two were sued in their official capacity, Quesnel represented the new superintendent and new president, and it was improper to have sent them the memorandum. First, the memorandum concerned only this lawsuit and was undeniably a communication regarding the subject of the Girvin Firm’s representation. As Oliver stated in the opening paragraph of the memorandum, the purpose of the communication was to request that the Board waive its attorney-client privilege “concerning the litigation between the School District and Michael Dornan.” [NYSCEF No. 13; T. 15, 82-83; Exhibit D] Second, Oliver knew that the Girvin Firm represented the defendants in this lawsuit since it began in 2016, and Oliver had no legitimate reason to believe that the Girvin Firm had ceased representing the defendants. Oliver admitted that he possessed this knowledge during the hearing when he offered the following testimony: Quesnel: And, to the best of your knowledge, how long have I been counsel for the school district and the defendants? To the best of your knowledge, how long have I been counsel for the school district and the other defendants in this lawsuit? Oliver: I think it was since January 2016, when the complaint was — when the answer was made. Quesnel: Through today; is that correct? Oliver: Yes. Quesnel: Okay. At any point in time between January of 2016 and today, did I indicate to you that I was no longer representing the defendants in this case? Oliver: No. Quesnel: At any point in time between January of 2016 and today, did the law firm Girvin and Ferlazzo advise you or your law firm that we are no longer representing the district in this case? Oliver: You did not or your law firm did not advise me of that. [T. 1 1] Although Oliver claims that he believed the District “fired” the Girvin Firm and was represented by the Bartlett Firm at the time he sent the memorandum to the District, the record establishes that:(l) the District’s Board of Education publicly voted to retain the Bartlett Firm on June 15, 2022 — nearly a year before Oliver sent the memorandum to the District; (2) Oliver did not copy the Bartlett Firm on the memorandum or seek permission to speak with the Bartlett Firm’s client; (3) Oliver communicated with the Court on March 29, 2023, and copied Quesnel as counsel for the defendants; and (4) on March 30, 2023, Quesnel sent a letter to Dornan concerning the privilege issue on behalf of the defendants. [T. 15; Exhibits A,B,C,D]. Oliver’s testimony and the evidence demonstrate Oliver’s understanding that all defendants continued to be represented by the Girvin Firm and Quesnel. Any suggestion to the contrary is belied by the record. Oliver does not claim that he was given consent by the Girvin Firm or Quesnel (or the Bartlett Firm) to communicate directly with the defendants or that he was otherwise authorized by law to do so. Even if the Court were to accept that Oliver believed the Bartlett Firm had succeeded the Girvin Firm prior to the memorandum being delivered, Oliver’s communication (through Dornan) with the District would still violate Rules of Professional Conduct “4.2(a) and 8.4(a) because Oliver did not have the consent of the Bartlett Firm to communicate with the District. In fact, Oliver discouraged the District’s Board of Education from disclosing the existence of the memorandum to the Girvin Firm and Quesnel when he wrote: “We are making this request on a confidential basis and believe for obvious reasons that neither the District nor its Board members or former Board members should communicate with attorney Lanchantin or attorney Quesnel or Girvin & Ferlazzo regarding this request.” [Exhibit D] This request exposes Oliver’s complete understanding of his actions and lack of mistake or confusion. Perhaps most significant, Oliver admits that he violated Rules of Professional Conduct 4.2 by causing the memorandum to be delivered to Hoskins and the Board. At the hearing, Oliver offered the following testimony: Quesnel: As you sit here today, do you agree with me that your act of sending [the memorandum] to the Fort Ann School District was a violation of Disciplinary Rule 4.2? Oliver: Yes, it was…[T. 25-26]. Specifically, Oliver testified his reason for not copying defendants’ counsel on the memorandum was because defendants’ counsel “resisted waiving confidentiality.” [T. 26]. Indeed, as Oliver wrote at the conclusion of the memorandum: “Mr. Dornan is hereby requesting the Superintendent and the Board of Education of the Fort Ann School District to waive attorney-client privilege and confidentiality with respect to all communications and activities by attorney Lanchantin, the Girvin & Ferla770 law firm, and any other attorneys in the law firm, from January 2015 to the present.”4 When asked directly by this Court at the hearing to describe his reason for preparing and sending the memorandum in violation of Rule 4.2, Oliver testified that his actions were a result of his disagreement with defendants’ attorneys’ strategy in this litigation. [T. 30-31]. The Court finds Oliver’s overt actions stemming from his disagreement with an opposing counsel’s strategy only magnifies his misconduct. [see T. 15; Exhibit D, p. 11]. Putting aside the fact that Oliver should have respected that the information he sought was protected by the attorney-client privilege, at the time Oliver drafted and sent the memorandum, the prior Court had twice granted plaintiff leave to file a motion to compel the defendants to produce the privileged communications that were being withheld.[T.301. Rather than seek to obtain evidence through permitted motion practice, Oliver attempted to convince a group of laypersons that it was in their best interests to secretly disclose the privileged communications that they exchanged with their counsel during pending litigation. Here, it is undisputed that Oliver prepared the memorandum, with this opening: "From: Lewis B. Oliver, Jr., Esq., attorney for Michael Dornan" addressed to Hoskins and the District's Board of Education and synchronized its delivery to Hoskins through his client, Dornan. (emphasis added) This communication addresses the subject matter of the pending litigation between the District and Oliver's client and sets forth plaintiff's version of the events which lead to the lawsuit. Oliver expressly asked the District to waive its' right to the privilege of attorney-client confidentiality. The Court finds that Oliver was aware that the District was represented by counsel in this matter and communicated to the defendants without consent of the Girvin Firm, Quesnel, or the Bartlett Firm --- all without legal authority. Based upon a review of the record evidence, testimony of the witnesses, and Attorney Oliver's admission, the Court finds that he violated Rules of Professional Conduct 4.2(a) and 8.4(a). Furthermore, the April 10 Hearing itself bore witness to Oliver's resistance to general rules of practice in this case. This Court courteously granted plaintiff permission to supplement the record after the hearing was closed with two transcripts. [See T. 43-44]. The record establishes that Oliver clearly understood that he was granted permission to file only those two transcripts.[id.] Yet, Oliver subsequently filed eight other documents that he had not received permission to file with the Court, which required the Court to strike those submissions from its docket. [See deleted NYSCEF Nos. 34-41]. Rule 4.2(a) of the Rules of Professional Conduct directs that “[i]n representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is authorized to do so by law”. [22 NYCRR 1200.0 Rules of Prof. Con., Rule 4.2(a)] Similarly, 8.4(a) of these rules mandates that “[a] lawyer or law firm shall not violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another (22 NYCRR 1200.0 Rules of Prof. con., Rule8.4(a)]. Furthermore, for good reason, the Commentaries to Rule 4.2 advise of “…the concern that an improvident discussion by the client with an outside party-the other attorney-would likely breach the important attorney-client privilege. The ethical prohibition also helps to avoid the possibility that an already represented party might be manipulated into saying or doing something that is against his interests or might even be detrimental to a litigation position. Moreover, in the context of litigation, relevant information is exchanged during the tightly controlled discovery process. Circumventing that process by the expedient, perhaps unscrupulous, conduct of an attorney directly obtaining information through a direct communication with the opposing party whose attorney is not present defeats the goal of discovery and may improperly threaten that party’s position. As characterized by the New York Court of Appeals, “the general thrust of the rule is to prevent situations in which a represented party may be taken advantage of by adverse counsel; the presence of the party’s attorney theoretically neutralizes the contact” [Niesig v. Team I, 76 N.Y.2d 363 [1990] (internal citation omitted)]. By establishing an ethical goal of “preventing lawyers from deliberately dodging adversary counsel to reach-and exploit-the client alone,” those parties, whose attorneys should be guiding them in pursuit of their own best interests, should be protected against “making improvident settlements, ill-advised disclosures and unwarranted concessions” [id.]“ Oliver has admitted he violated Rules of Professional Conduct 4.2. (22 NYCRR 1200.0 Rules of Prof. Con., Rule 4:2) [T. 25-26, 52]. With this admission the Court also finds Oliver violated Rules of Professional Conduct 8.4(a). [Rules of Prof. Con., Rule 8.4(a)] Based upon the foregoing analysis and each portions the record which is refenced hereinabove the Court does ADJUDGE that Lewis B. Oliver, Jr., Esq. is found by this Court to have violated Rules of Professional Conduct 4.2(a) [22 NYCRR 1200.0 Rules of Proc con., Rule 4.2(a)] and Rules of Professional Conduct 8.4(a) [22 NYCRR 1200.0 Rules of Proc con., Rule 8.4(a)]. The above constitutes the Decision and Judgment of this Court. The original of this Decision and Judgment has been filed by the Court. Counsel for defendants is directed to serve plaintiff with notice of entry. Dated: September 3, 2024
