FOR THE RECORD
May 18, 2020 — Brewer, Attorneys & Counselors announced today that its client, the National Rifle Association of America (“NRA” or “the Association”), seeks to reargue a court ruling that limits the Association’s ability to protect its confidential and privileged information provided to the New York Attorney General (“NYAG”) by the Association’s longtime fiduciary, Ackerman McQueen, Inc. (“AMc”). The NRA is joined by famed civil procedure expert and NYU Law School Professor Arthur R. Miller in its efforts to overturn the court’s decision that denies the NRA such protections.
The dispute arises out of a campaign promise made by then NYAG candidate Letitia James. Beginning in her primary campaign and throughout her general election, James vowed to investigate the NRA – an organization that she referred to as a “criminal enterprise” and “terrorist organization” – if elected. Only five months after the promised investigation commenced in April 2019, the NYAG filed an action seeking a court order to enforce a subpoena issued to AMc, despite the fact that AMc was willing to comply with the subpoena after providing the NRA an opportunity to review the material for privileged information. The NRA argues that, nonetheless, the NYAG sought an order without any support in the law preventing the NRA from having an opportunity to review AMc-produced documents for confidential and privileged material. On February 21, 2020, the Hon. Melissa Anne Crane ruled against the NRA.
A brief filed on May 15, 2020, in the Supreme Court of the State of New York, County of New York, questions that controversial decision and argues that the court failed to appreciate the confidential and attorney-client privileged nature of material being sought by the NYAG.
According to the NRA, it seeks only to review and safeguard privileged communications – protections afforded under the law. In a stunning revelation, the NRA alleges that, in at least one instance, AMc secretly possessed an NRA attorney-client privileged presentation on legal matters – material that, under the current decision, is available to the NYAG. The NRA also argues that the court misunderstood the fiduciary relationship between the NRA and AMc, an agent that advised the Association on a wide range of legal and regulatory issues – far beyond the typical scope of an advertising agency or communications firm.
“It is simple: the NRA believes the NYAG is using its subpoena power as a gateway into privileged communications that were part and parcel of a multi-decade fiduciary relationship,” says William A. Brewer III, partner at Brewer, Attorneys & Counselors and outside counsel to the NRA. “The intent here is to protect privileged communications – a request that is neither extraordinary nor burdensome to an investigative process many believe is driven by political animus.”
In connection with the filing, Professor Miller writes that the court’s February 2020 decision “offends fundamental tenets of civil procedure and due process,” and “threatens to impair and diminish the attorney-client privilege and work product/trial preparation privileges…”
Professor Miller writes that he is neither a member nor a political supporter of the NRA but submits his affidavit in support of the NRA’s application given the inherent unfairness in a prior court decision that “is wrong, dangerous, and invites the unwelcome interference of political bias and other illicit motivations into our judicial system. It should be reconsidered or, if necessary, overruled.”
Professor Miller recognizes the NRA’s position that AMc “served as one of its closest, most trusted collaborators for more than thirty years on matters of strategic importance, entered into contracts on its behalf, represented it in public fora and business transactions, and produced public communications that needed to be collaborated to reflect legal considerations, such as donor-privacy, intellectual property, and Second Amendment matters.” He adds, “The NRA should be given the opportunity to review the documents at issue and assemble its privilege log.”