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Revisiting The Attorney-Client Privilege, The Common Interest Doctrine and The Work Product Doctrine

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  • Posted on: Jan 13 2025

By: Jeffrey M. Haber

On numerous occasions, this Blog has examined the attorney-client privilege, the common interest doctrine, and the attorney work product doctrine.[1] Today, we take another opportunity to explore the contours of these privileges.

The Tension Between Disclosure and The Attorney-Client Privilege

The Civil Practice Law and Rules (“CPLR”) directs that there shall be “full disclosure of all matter material and necessary in the prosecution or defense of an action.”[2] Notwithstanding, the CPLR establishes three categories of materials protected from disclosure: privileged matter, which is afforded absolute immunity from discovery[3]; attorney work product, which is also afforded absolute immunity[4]; and trial preparation material, which is subject to disclosure only on a showing of substantial need and undue hardship in obtaining substantially equivalent material by other means.[5]

As the New York Court of Appeals noted, there exists an obvious tension between the policy favoring full disclosure and the policy permitting parties to withhold relevant information.[6] Consequently, the burden of establishing any right to protection is on the party asserting it; the protection claimed must be narrowly construed; and its application must be consistent with the purposes underlying immunity.[7]

The burden cannot be satisfied by conclusory assertions of privilege. Rather, the proponent of the privilege must set forth competent evidence establishing the elements of the privilege.[8]

The attorney-client privilege is the oldest among common-law evidentiary privileges.[9] It is intended to foster open and candid dialog between lawyer and client and is deemed essential to effective representation.[10]

In order for the privilege to apply, the communication from attorney to client must be made for “the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship.”[11] The communication itself must be primarily or predominately of legal character.[12]

Communications Protected From Disclosure

The attorney-client privilege insulates from disclosure a discreet category of communications between attorney, client, and, in some instances, third parties that assist the attorney to formulate and render legal advice.[13] The privilege does not apply merely because a statement was uttered by or to an attorney (or an attorney’s agent). Nor does it attach simply because a statement conveys advice that is legal in nature.[14]

The privilege is not limited, however, to communications directly between the client and counsel. It also encompasses communications between an attorney and a client’s agent or representative provided that the communications are intended to facilitate the provision of legal services by the attorney to the client.[15] It does not, however, protect communications between a nonlawyer and a client that involve the conveyance of legal advice offered by the nonlawyer, except when the nonlawyer is acting under the supervision or the direction of an attorney.[16]

Moreover, the privilege protects from disclosure communications among corporate employees that reflect advice rendered by counsel to the corporation.[17] “A privileged communication should not lose its protection if an executive relays legal advice to another who shares responsibility for the subject matter underlying the consultation.”[18] This follows from the recognition that since the decision-making power of the corporate client may be diffused among several employees, the dissemination of confidential information to such persons does not defeat the privilege.[19]

The Common Interest Protection

Under the common interest doctrine, the presence of a third party will not destroy a claim of privilege where two or more clients separately retain counsel to advise them on matters of common legal interest.

The doctrine originated in the context of criminal cases, where the courts “allowed the attorneys of criminal co-defendants to share confidential information about defense strategies without waiving the privilege as against third parties.”[20] The first known case to apply the exception came from Virginia. In Chahoon v. Commonwealth, 62 Va. 822, 839-840 (1871), the court allowed criminal attorneys to coordinate the strategies of their clients, who were under joint indictment for conspiracy to defraud an estate and retain the privileged nature of their communications. The court reasoned that the parties “had the same defen[s]e to make” and therefore “the counsel of each was in effect the counsel of all.”[21] 

In Schmitt v. Emery, 211 Minn. 547, 2 N.W.2d 413 (1942), the court extended the doctrine to civil litigation. There, a privileged document was exchanged among counsel for several co-defendants in a civil action, to prepare objections to the document’s admission into evidence. The court held that “[w]here an attorney furnishes a copy of a document entrusted to him by his client to an attorney who is engaged in maintaining substantially the same cause on behalf of other parties in the same litigation,” the communication is protected from disclosure by the attorney-client privilege because it was “made not for the purpose of allowing unlimited publication and use, but in confidence, for the limited and restricted purpose to assist in asserting their common claims.”[22]  The Uniform Rules of Evidence adopted this formulation of the doctrine, protecting attorney-client communications “by the client or a representative of the client or the client’s lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein.” Uniform Rules Evid. 502(b)(3).

In New York, the Court of Appeals first recognized the common interest doctrine in People v Osorio, 75 N.Y.2d 80 (1989). In Osorio, the Court considered whether a defendant who communicated with counsel in the presence of a separately represented co-defendant in a pending criminal prosecution could prevent the co-defendant from testifying as to what he heard. The co-defendant was at the time acting as an interpreter between the defendant and his attorney. Although the Court acknowledged that the attorney-client privilege would, ordinarily, protect communications between co-defendants that are shared for the purpose of “mounting a common defense,” the Court ultimately held that it did not apply in that case because the defendant “was not planning a common defense” and, therefore, did not share a common legal interest with him.[23] 

After Osorio, courts in New York applied the common interest doctrine to both criminal and civil matters, to communications of both co-plaintiffs and co-defendants, but always in the context of pending or reasonably anticipated litigation.[24] Although federal courts have extended the exception regardless of whether litigation is pending or threatened,[25] the Court of Appeals has declined to do so.[26] 

In declining to extend the doctrine, the Court noted that limiting the doctrine “to situations where the benefit and the necessity of shared communications are at their highest” – i.e., during litigation or when there is the threat of litigation – reduces the risk of misuse.[27]  The Court reasoned that “the common interest doctrine promotes candor that may otherwise have been inhibited” between co-litigants.[28] Otherwise, “the threat of mandatory disclosure may chill the parties’ exchange of privileged information and therefore thwart any desire to coordinate legal strategy.”[29] 

The Court rejected the notion that there is a shared common legal interest in a commercial transaction or other common situation “outside the context of litigation” or the threat of litigation.[30]

The Court further rejected the argument that limiting the exception to litigation “will create an anomalous result: clients who retain separate attorneys … cannot protect their shared communications absent pending litigation but the same communications made in the absence of litigation would be privileged if [they] had simply hired a single attorney to represent them” in a non-litigation context.[31] The Court reasoned that “[i]n the joint client or co-client setting … the clients indisputably share a complete alignment of interests in order for the attorney, ethically, to represent both parties. Accordingly, there is no question that the clients share a common identity and all joint communications will be in furtherance of that joint representation.”[32]  But, when clients retain separate attorneys to represent them on a matter of common legal interest, that is not so. “It is less likely that the positions of separately-represented clients will be aligned such that the attorney for one acts as the attorney for all, and the difficulty of determining whether separately-represented clients share a sufficiently common legal interest becomes even more obtuse outside the context of pending or anticipated litigation.”[33] “Consequently,” held the Court, “although a litigation limitation may not be necessary in a co-client setting where the fact of joint representation alone is often enough to establish a congruity of interests, it serves as a valuable safeguard against separately-represented parties who seek to shield exchanged communications from disclosure based on an alleged commonality of legal interests but who have only commercial or business interests to protect.”[34]

The Attorney Work Product Doctrine

The attorney work product doctrine protects those materials prepared by an attorney, acting as an attorney and which contain the attorney’s analysis and trial strategy.[35] The work product of an attorney consists of interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and other tangible and intangible things.[36] As with the attorney-client privilege, the burden of showing that material is protected under the doctrine is on the party asserting the protection.[37] Conclusory assertions that documents constitute attorney work product or material prepared for litigation will not suffice.[38]

In Matter of TGT, LLC v. Meli, 2025 N.Y. Slip Op. 00180 (1st Dept. Jan. 9, 2025) (here), the foregoing principles were considered by the Appellate Division, First Department in a case involving a judgment enforcement subpoena.

Matter of TGT, LLC v. Meli

TGT arose from the motion court’s decision and order compelling Respondent-Appellant (the “law firm”) to produce documents in response to a judgment enforcement subpoena served by Petitioner-Respondent TGT, LLC (“TGT”). By its subpoena, TGT sought documents and communications relating to the law firm’s engagement by Joseph Meli (“Joseph”) to assist in the liquidation and transfer of Joseph’s assets to a trust. At the time of the law firm’s engagement, Joseph was a judgment debtor of TGT.

In 2017, TGT commenced a civil action against Joseph and Advance Entertainment LLC (“Advance”), a company that was in the business of purchasing and reselling tickets to concerts and other live events, claiming fraudulent activities for which Joseph previously pled guilty. On October 25, 2019, the motion court issued a judgment in favor of TGT and against Advance and Joseph on TGT’s fraud claim.

TGT filed a turnover petition on April 21, 2023, asserting that Joseph and his father, Richard, unlawfully transferred and/or dissipated Joseph’s assets through fraudulent trusts. The motion court determined that the transfers of Joseph assets constituted voidable transfers under New York law.

As part of its effort to collect documents regarding Joseph’s assets, TGT served a subpoena duces tecum upon the law firm on August 11, 2023. The subpoena contained four (4) document requests, each seeking non-privileged documents and communications concerning the law firm’s representation of Joseph. The law firm served objections and responses to the subpoena on September 14, 2023.

TGT moved to compel. After the motion was fully briefed, and on the eve of the argument on the motion, the law firm served TGT with a privilege log (the “Privilege Log”). The law firm asserted protection from disclosure pursuant to the attorney-client privilege, the common interest doctrine, and the attorney work product doctrine as to various materials sought—notably, communications between Richard and the law firm. At the hearing on the motion, the motion court ordered the law firm to produce a disclosure statement listing Joseph’s assets, its engagement letters, and any common interest agreements.

The law firm contended that TGT was seeking the production of communications and documents that were protected from disclosure as: (1) attorney-client communications with Richard as Joseph’s agent; (2) attorney-client communications with Joseph and Richard, who shared a common legal interest in reasonably anticipated litigation; and (3) the law firm’s work product. In response, TGT argued, among other things, that the law firm could not meet its burden of demonstrating that any of those communications were privileged because: (1) there was no evidence in the record that Richard was acting as agent for Joseph or that Richard’s participation was necessary to facilitate attorney-client communications; (2) Richard and Joseph shared a common personal and/or business interest in seeking to transfer assets into a trust for the benefit of Joseph’s children, not a common legal interest in connection with any pending or reasonably anticipated litigation; and (3) the work product privilege did not attach to documents that could have been created by a layperson.

The motion court agreed with TGT, holding that the law firm failed to carry its burden.

First, the motion court found that the law firm did not provide any evidence that Joseph had a reasonable expectation that communications between the law firm and Richard, in his capacities as Joseph’s attorney-in-fact or trustee of a trust for which he was a trustee, would be confidential. In reaching this finding, the motion court cited cases in which there were specific writings evidencing an intent to keep the communications confidential. [39] Moreover, said the motion court, the law firm failed to explain, “much less offer any evidence of”, how Richard’s participation was necessary to facilitate attorney-client communication.  

Second, the motion court found that the law firm failed to demonstrate that the common legal interest exception applied to its communications with Richard. The motion court rejected the law firm’s argument that Joseph and Richard shared a common legal interest in seeking a legal defense as to assets that were not subject to the forfeiture orders and judgments issued in the criminal case against Joseph, because they reasonably anticipated follow-on criminal court litigations to enforce those forfeiture orders and judgments. The motion court held that simply because Richard and Joseph sought to fund the trust without violating the forfeiture and restitution orders and judgments against Joseph, did not mean that they reasonably anticipated litigation. The motion court found that the law firm did not provide a basis for why Joseph and Richard anticipated enforcement litigation.[40]

Finally, with regard to the law firm’s work product, the motion court found that the entries on the Privilege Log improperly asserted the protection. For example, the entries cited by the motion court described such tasks as, among other things, scheduling calls and discussing fees. Such tasks, said the motion court, did not describe activities that are “uniquely the product of a lawyer’s learning and professional skills” or “communication of a legal character”.[41]

On appeal, the First Department unanimously affirmed.

The Court held that the motion court “providently exercised its discretion in compelling production of communications involving Richard … and the entries identified on the ‘Entries Not Legal Advice’ privilege log.”[42] Regarding the agency argument advanced by the law firm, the Court “declined to substitute [its] own discretion for that of the motion court based on the new necessity argument that was never presented to the motion court.”[43] On appeal, the law firm “abandon[ed] its prior incorrect argument that a showing of necessity was not required” to demonstrate “that Richard was necessary to Joseph’s attorney-client relationship with [the law firm].”[44]

The Court also held that the motion court “properly found that no sufficient common legal interest was shown.”[45] The Court found that the law firm’s “engagement and associated communications in furtherance of effecting transfers of Joseph’s assets to irrevocable trusts outside his control did not relate to litigation in which Richard reasonably anticipated he would become a colitigant with Joseph.”[46]

Finally, the Court “reject[ed] the claim that the [motion] court failed to address the work product privilege for most of the entries on the privilege log.”[47] “By requiring production of the items on the narrowed log,” said the Court, “the [motion] court based the required production on its finding that those entries pertained to nonlegal tasks.”[48]

_______________________________

Jeffrey M. Haber is a partner and co-founder of Freiberger Haber LLP. This article is for informational purposes and is not intended to be and should not be taken as legal advice.


[1] We examined these privileges, for example, here, here, here, here, here, and here.

[2] CPLR 3101(a).

[3] CPLR 3101(b).

[4] CPLR 3101(c).

[5] CPLR 3101(d)(2); see also Spectrum Sys. Intl. Corp. v. Chemical Bank, 78 N.Y.2d 371 (1991).

[6] Spectrum Sys., 78 N.Y.2d at 377.

[7] Id.; Matter of Priest v. Hennessy, 51 N.Y.2d 62, 69 (1980); Matter of Jacqueline F., 47 N.Y.2d 215 (1979).

[8] Delta Fin. Corp. v. Morrison, 15 Misc. 3d 308, 316-17 (Sup. Ct., Nassau County 2007); see also Martino v. Kalbacher, 225 A.D.2d 862 (3d Dept. 1996).

[9] 8 Wigmore, Evidence § 2290 (McNaughton rev. 1961).

[10] See Matter of Vanderbilt (Rosner—Hickey), 57 N.Y.2d 66 (1982).

[11] Rossi v. Blue Cross & Blue Shield of Greater N.Y., 73 N.Y.2d 588, 593 (1989).

[12] Id. at 594.

[13] See United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961); see also Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1424 (3d Cir. 1991).

[14] See HPD Labs., Inc. v. Clorox Co., 202 F.R.D 410 (D.N.J. 2001).

[15] Delta Fin., 15 Misc. 3d at 316-17 (citations omitted).

[16] Id. (citations omitted).

[17] Id. (citations omitted).

[18] See SCM Corp. v. Xerox Corp., 70 F.R.D 508, 518 (D. Conn. 1976).

[19] Id. (citation omitted).

[20] In re Teleglobe Communications Corp., 493 F.3d 345, 364 (3d Cir. 2007).

[21] Id. at 841-42.

[22] Id. at 554, 2 N.W.2d at 417.

[23] Id. at 85 (relying on United States v McPartlin, 595 F.2d 1321, 1336 (7th Cir 1979), and Hunydee v. United States, 355 F.2d 183, 185 (9th Cir 1965)).

[24]  See, e.g., Hyatt v. State of Cal. Franchise Tax Bd., 105 A.D.3d 186 (2d Dept. 2013).

[25] E.g., Teleglobe, 493 F.3d at 364; United States v. BDO Seidman, LLP, 492 F.3d 806, 816 (7th Cir 2007); In re Regents of Univ. of Cal., 101 F.3d 1386, 1390-1391 (Fed. Cir. 1996))

[26] Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 27 N.Y.3d 616, 628 (2016).

[27] Id. at 628.

[28]  Id.

[29] Id.

[30] Id. at 629-30.

[31] Id. at 630-31.

[32] Id. at 631(citation omitted).

[33]  Id. 

[34]  Id. (citations omitted).

[35] See Weinstein-Korn-Miller, N.Y. Civ. Prac. ¶ 3101.44 (2d ed.); see also Aetna Cas. & Sur. Co. v. Certain Underwriters at Lloyd’s, 263 A.D.2d 367 (1st Dept. 1999).

[36] Hickman v. Taylor, 329 U.S. 495 (1947).

[37] See generally Koump v. Smith, 25 N.Y.2d 287 (1969).

[38] See Salzer v. Farm Family Life Ins. Co., 280 A.D.2d 844 (3d Dept. 2001); Zimmerman v. Nassau Hosp., 76 A.D.2d 921 (2d Dept. 1980).

[39] Homapour v. Harounian, 211 A.D.3d 508, 509 (1st Dept. 2022) (finding privilege was maintained where, among other things, there was an agency agreement specifying that the agent’s “activities were undertaken at counsel’s direction and were intended to maintain and preserve privilege”); Spicer v. GardaWorld Consulting (UK) Ltd., 181 A.D.3d 413, 414 (1st Dept 2020) (finding that the plaintiffs had “a reasonable expectation that the confidentiality of communications between their counsel and (their financial adviser) would be maintained” where “(p)laintiffs’ counsel attested that (the financial adviser) promised to keep all such communications confidential” and the relevant transaction document “specified that all privileged documents related to the transaction would remain protected from disclosure to defendant even after closing.”), lv. dismissed, 37 N.Y.3d 1084 (2021).

[40] Matter of New York Counsel for State of California Franchise Tax Bd., 33 Misc. 3d 500, 516 (Sup. Ct., Westchester County 2011) (“[t]here must be a substantial showing by the party attempting to invoke the protections of the privilege of the need for a common defense as opposed to the mere existence of a common problem.”), aff’d sub nom., Hyatt v. State of Cal. Franchise Tax Bd., 105 A.D.3d 186 (2d Dept. 2013) (internal citation omitted) (explaining that the common interest exception “does not protect business or personal communications”); Ambac, 27 N.Y.3d at 629 (refusing to “to extend the common interest doctrine to communications made in the absence of pending or anticipated litigation”).

[41] Brooklyn Union Gas Co. v. American Home Assur. Co., 23 A.D.3d 190, 190-191 (1st Dept. 2005).

[42] Slip Op. at *1.

[43] Id.

[44] Id.

[45] Id.

[46] Id. (citing Ambac, 27 N.Y.3d at 627).

[47] Id.

[48] Id. (citing Brooklyn Union Gas, 23 A.D.3d at 190-191).

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