Wednesday, July 20, 2016

Attorney-client privilege as to in-house general counsel.

Practice point:  The Appellate Division reversed the motion court that had granted plaintiff's motion to compel defendants to produce certain documents that had been withheld on the basis of attorney-client privilege.  The primary issue on appeal was whether attorneys who have sought the advice of their law firm's in-house general counsel on their ethical obligations in representing a firm client may successfully invoke attorney-client privilege to resist the client's demand for the disclosure of communications seeking or giving such advice.  The Appellate Division held that these communications are not subject to disclosure to the client under the fiduciary exception to the attorney-client privilege, as, for purposes of the in-firm consultation on the ethical issue, the attorneys seeking the general counsel's advice, as well as the firm itself, were the general counsel's clients. The Appellate Division expressly declined to adopt the current client exception, under which a former client is entitled to disclosure by a law firm of any in-firm communications relating to the client that took place while the firm was representing that client.

Student note:  New York has codified the attorney-client privilege at CPLR 4503, which provides, in pertinent part, as follows:

(a) 1. Confidential communication privileged. Unless the client waives the privilege, an attorney or his or her employee, or any person who obtains without the knowledge of the client evidence of a confidential communication made between the attorney or his or her employee and the client in the course of professional employment, shall not disclose, or be allowed to disclose such communication, nor shall the client be compelled to disclose such communication, in any action, disciplinary trial or hearing.

Case:  Stock v. Schnader Harrison Segal & Lewis LLP, NY Slip Op 05247 (1st Dep't June 30, 2016)

Here is the decision.

Tomorrow's issue:  A collision on a ski slope.