Archdiocese Asserts Privilege against Subpoena in Priest Sex-Abuse Case

By Amaris Elliott-Engel
Pittsburgh Post-Gazette
March 19, 2012

http://www.post-gazette.com/stories/business/legal/archdiocese-asserts-privilege-against-subpoena-in-priest-sex-abuse-case-517369/

The Catholic Archdiocese of Philadelphia said in a motion that it will not waive its own attorney-client privilege regarding 12 documents that Monsignor William J. Lynn wants to subpoena in the criminal case against him.

Monsignor Lynn, the archdiocese's secretary for clergy from 1992 until 2004, is facing criminal charges, including endangering the welfare of children, on allegations that he failed to take sufficient action to protect children from sexually abusive priests.

During a hearing in January, attorneys for the archdiocese said that it might one day assert attorney-client privilege that can't be waived, even if the monsignor waives his own attorney-client privilege.

That day came.

Robert E Welsh Jr., Catherine M. Recker and Lindsay S. Kim Chung of Welsh & Recker filed a motion to quash Monsignor Lynn's subpoena regarding 12 communications he had between 1993 to 1999 with attorneys John P. O'Dea and C. Clark Hodgson Jr. of Stradley Ronon Stevens & Young.

Welsh & Recker was hired in November to oversee the logistics of the sex-abuse litigation on both the civil and criminal fronts and Conrad O'Brien was hired a month later to take over the actual litigation from Stradley Ronon.

Monsignor Lynn can't unilaterally waive the archdiocese's attorney-client privilege when it asserts its right to privileged communications, the archdiocese's attorneys argued in court papers.

Furthermore, he does not hold the privilege because he did not get the advice of counsel in his individual capacity, the archdiocese's attorneys also argued.

"Each communication involves legal advice from Mr. O'Dea or Mr. Hodgson on procedures for handling the sexual misconduct of priests and clearly seeks or provides opinions from Mr. O'Dea or Mr. Hodgson in their capacity as counsel," the Welsh & Recker attorneys wrote.

"Moreover, it is clear that Monsignor Lynn is communicating with counsel in his capacity as secretary for clergy, a role he served on behalf of the archdiocese. Thus, these are communications covered by the attorney-client privilege belonging to the archdiocese."

Monsignor Lynn also has not met his burden of demonstrating that the disclosure of those 12 documents would not violate the archdiocese's attorney-client privilege, the motion said.

"The archdiocese is a religious entity that clearly enjoys the same protections regarding attorney-client privilege as any corporate entity," the subpoena motion said. "The law is well-settled that a corporation enjoys a privilege protecting its communications with its attorneys. The law also is well-settled that corporations act through their agents and therefore communicate with their lawyers through agents."

During the hearing in January, prosecutor Patrick Blessington argued that the privilege to confidentiality in communications between Monsignor Lynn and Stradley Ronon is the monsignor's alone to waive.

Mr. Blessington also argued that there was a conflict between the monsignor and the archdiocese regarding attorney-client privilege because the monsignor was represented by an attorney from Stradley Ronon at the same time Stradley Ronon was representing the archdiocese during the Philadelphia District Attorney Office's first investigating grand jury into allegations of sexual assault by priests against minors.

The trial is scheduled to open March 26. There is a gag order in the case.