This story was reported by New Jersey Monitor, a nonprofit publishing partner of NJ Spotlight.
An appeals court blocked the full disclosure of an investigative report into sexual abuses by the late Cardinal Theodore McCarrick, ruling that its secrecy is guarded by attorney-client privilege and that a lower court judge had erred when he ordered it released.
The three-judge panel’s unanimous ruling will shield most sections of a report into McCarrick’s conduct and will allow the release of portions about policies and procedures at Seton Hall University, where the cardinal led the Board of Trustees and the Board of Regents. McCarrick was removed from the priesthood in 2019 by Pope Francis after the Vatican determined that he had molested adults.
The decision partially reverses Superior Court Judge Avion Benjamin’s November ruling that found Seton Hall University must hand the report to a group of plaintiffs who sued the Archdiocese of Newark, alleging they were sexually abused by clergy.
The ruling on Tuesday largely sides with lawyers for Seton Hall who had argued that the report is guarded by attorney-client privilege. The report was written by the law firm Latham & Watkins at the behest of another law firm — Gibbons, which on Jan. 1 was renamed FBT Gibbons — hired by Seton Hall.
‘Necessary agent’
“Even though no attorney-client relationship existed between SHU and Latham, an attorney-client relationship existed between Gibbons and SHU that extended to Latham as a necessary agent of Gibbons,” the ruling says.
Emails between Seton Hall and Latham & Watkins that do not include Gibbons also need not be turned over unless they include self-critical analysis of university policies, rather than McCarrick’s actions, according to the ruling.
Benjamin must examine roughly 90 witness interview notes to determine whether they are guarded by attorney-client privilege.
Case law says attorney-client privilege is not absolute, and the shield can be pierced when an attorney conducts an investigation for some purpose other than litigation preparation. For self-critical analysis investigations like the one that resulted in the Latham report, attorney-client privilege is weighed on a case-by-case basis, the appeals court said.
Plaintiffs in part had argued that any privilege was waived when the university shared the report with the Vatican. They said the inclusion of the Holy See, as a third party, was enough to defeat the school’s privilege claims.
The appeals court disagreed. Because Seton Hall’s Immaculate Conception Seminary School of Technology is a Roman Catholic school, it felt it owed obeisance to the Vatican and shared the report as a “religious duty,” the court said. Because both understood the report would remain confidential, no privilege was waived.
Email reviews
Email attachments that predate the case were not necessarily privileged, the appeals court found, but the trial court should review them to see if they can be withheld on other grounds.
Gabriel Magee, who argued the case on behalf of the victims, said his side was pleased that some parts of the report will be produced.
“We are still digesting the opinion and considering our appeal options with respect to the rest of the decision,” he said.
An attorney for the university did not immediately respond to a request for comment.
Latham & Watkins was hired to investigate claims that McCarrick abused seminarians from 1986-2000 and that Monsignor Joseph Reilly, the Seton Hall current president and a former seminary dean, botched the school’s response.
