Oyster Bay says attorney correspondence is protected

Oyster Bay Town has withheld dozens of communications from prosecutors in the corruption trial of former Nassau County Executive Edward Mangano, his wife Linda, and former Town Supervisor John Venditto, saying in court papers the documents are protected by attorney-client privilege.

Among the correspondence the town wants shielded are emails between a former town attorney and a law firm that Oyster Bay officials have argued didn’t actually work for the town.

U.S. District Judge Joan Azrack in Central Islip last week ordered the town to respond to the prosecution’s request for unredacted copies of some of the communications by Wednesday when lawyers in the case are scheduled to appear in court. The Manganos and Venditto have pleaded not guilty to corruption charges in the case related to indirect loan guarantees backed by the town for former town concessionaire Harendra Singh.

The documents in question include emails Deputy Town Attorney Frederick Mei sent to, was copied on or received from Uniondale-based law firm Rivkin Radler LLP and Jonathan Sinnreich, who long served as Oyster Bay’s outside legal counsel, court documents show.

Prosecutors argued in last week’s court filing that the communications are exempt from attorney-client privilege under the crime fraud exception, which can lift protections for communications intended to aid in the commission or furtherance of criminal acts. Prosecutors also said the privilege was waived because some emails were forwarded to Singh.

“These communications were clearly made in furtherance of, and with the intent to further and to facilitate this fraud,” prosecutors wrote.

Prosecutors said in court filings that evidence of Mangano and Venditto’s alleged crimes would be shown in the lengths they went to in obtaining loan guarantees and the communications are “likely to include relevant evidence.”

Mei and Singh have pleaded guilty to corruption charges related to the Mangano and Venditto case. Town officials alleged in an Aug. 16 response to the U.S. Securities and Exchange Commission notice of filing a civil lawsuit that Mei concealed from other town officials his activities with Singh and the law firm Harris Beach PLLC to craft more than $20 million in indirect loan guarantees by the town on Singh’s behalf.

Unfettered conversations between clients and attorneys were essential to getting good legal advice and the town board should not waive its privilege in the loan-guarantee communications sought by prosecutors, Oyster Bay Town Councilwoman Rebecca Alesia said.

“We as a board have a duty to protect the town’s finances and the town’s residents, and we’re clearly under scrutiny and lawsuits relating to these topics,” Alesia said.

Oyster Bay Town Attorney Joseph Nocella declined to comment Tuesday.

“Attorney-client privilege belongs to the client and it’s up to the client, not to the attorney, whether to assert it or waive it,” Sinnreich said Tuesday.

Attorneys for Mei and Singh could not be reached Tuesday night. Harris Beach and Rivkin Radler representatives have previously stated that they acted ethically and professionally on the loan guarantees.

Town officials argued in their SEC response that Harris Beach was not properly hired, calling its representation of the town “purported” in contrast with “properly retained counsel.” The town said in the filing that Mei hired Harris Beach in 2010 but “Mei had no authority to engage counsel.”

Town officials asserted emails between Mei and a Harris Beach attorney in October and November 2011 regarding concession agreements are privileged communications, but had referred to them in the SEC filing, stating that “in November 2011, Mei and Harris Beach fabricated another amendment” that “purported to obligate the town to a $7.8 million loan.”

Hofstra University law professor Ellen Yaroshefsky said she couldn’t comment on the case, but in general when a single party offers contradictory arguments about attorney-client privilege, that can mean it doesn’t apply.

“Assuming that they’re taking inconsistent positions as to the existence of privilege in civil and criminal cases, there’s likely no attorney client privilege,” Yaroshefsky said.

CORRECTION: A previous version of this story incorrectly included emails Deputy Town Attorney Frederick Mei sent to, was copied on or received from the law firm Harris Beach PLLC among those sought by federal prosecutors.