The Attorney-Client Privilege: Common Interest Doctrine and Communications By Corporate Representatives Which Convey Legal Advice

• Posted on: Aug 9 2023

By: Jeffrey M. Haber

On numerous occasions, this Blog has examined the attorney-client privilege 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 immunity⁴; 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 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 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 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.²⁰ The work product of an attorney consists of interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and other tangible and intangible things.²¹ As with the attorney client privilege, the burden of showing that material is protected under the doctrine is on the party asserting the protection.²² Conclusory assertions that documents constitute attorney work product or material prepared for litigation will not suffice.²³ 

In West 87 LP v. Paul Hastings LLP, 2023 N.Y. Slip Op. 50821(U) (Sup. Ct., N.Y. County Aug. 4, 2023) (here), the foregoing principles were considered by the court in ruling on a motion for a protective order to prevent the disclosure of documents and information deemed to be privileged.

West 87 LP v. Paul Hastings LLP

West 87 involved a claim of legal malpractice. The action was brought by West 87 LP, on its own behalf and as assignee of QSB 267 Property Co. LLC, QSB 267 Holdings LLC, Simon Baron Development LLC and JSMB 267 LLC (“plaintiffs”). 

Plaintiffs were a group of limited liability companies that owned or controlled various aspects of a real estate development project located on West 87th Street in New York City. Defendant purportedly represented plaintiffs in the execution of lease agreements for the project. Plaintiffs alleged that defendant failed to properly analyze and draft a rent escalation clause in a ground lease for the development.

The parties engaged in discovery, pursuant to which they produced documents that contained communications between defendant and plaintiffs’ nonparty owner-entities Quadrum Global and Simon Baron Development Inc. At issue was certain correspondence between plaintiffs and other entities purportedly employed by plaintiffs for legal representation. Plaintiffs made 87 privilege designations over the communications. Plaintiffs maintained that the communications were protected by the attorney-client privilege, the attorney work product privilege, and the litigation privilege. Defendant challenged 82 of the designations, which involved 32 documents. 

The withheld documents fell into five categories of records. The first category involved communications between representatives of nonparty developer Quadrum Global and plaintiff Simon Baron Development. The communications purportedly conveyed information provided by outside legal counsel. The second category of documents related to information obtained from outside legal counsel for the purposes of evaluating legal claims against defendants, and the third and fourth categories pertained to communications regarding the drafting of the malpractice complaint. The fifth and final category of documents reflected discussions regarding prior and anticipated legal advice, and requests for legal advice relevant to the evaluation of claims in the litigation.

Plaintiffs moved for a protective order exempting the 32 documents from disclosure. 

In seeking protection, plaintiffs conceded that the majority of the disputed documents did not include legal counsel as senders or recipients on the communications. Rather, the senders were businesspersons who, at some point during the communication, referenced legal advice allegedly provided by counsel. Despite not having legal counsel as a participant in a majority of the communications at issue, plaintiffs nonetheless asserted that either the attorney-client privilege, the attorney work product privilege, or the trial preparation privilege applied.

The motion court conducted an in-camera review of the documents. In doing so, the motion court found that “a number of documents contain[ed] communications made by corporate representatives of plaintiff Simon Baron Development which convey[ed] legal instruction or advice.”²⁴ As such, the motion court concluded that those documents were protected by the attorney client privilege.²⁵ 

A number of the withheld documents, however, contained information regarding purported legal advice provided to plaintiffs, but communicated through third-party entities who, plaintiffs admitted, were not attorneys and not parties to the litigation. The motion court held that these documents were privileged under the common interest doctrine.²⁶ Pursuant to the common interest doctrine, attorney-client communications disclosed to a third party remain privileged if shared with parties of common legal interest in pending or anticipated litigation.²⁷ 

The motion court found that the entities referenced in the withheld communications were interrelated, and the communications at issue “were made for the purpose of discussing the pending litigation, strategies for addressing the litigation, or for preparation of relevant materials for the litigation.”²⁸ As such, the communications between plaintiffs, nonparty entities and non-lawyers were privileged and protected “by virtue of the entities’ common legal interests in the prosecution of th[e] action.”²⁹

Finally, with respect to plaintiffs’ claim of work product privilege, some of the communications were made for the purpose of preparing materials to assist in anticipated litigation, while a number of documents reflected the production of engagement letters and invoices. As to the latter (i.e., retention and engagement letters), the motion court held that such materials were discoverable.³⁰ The motion court also held that “[e]mails merely reflecting the production of invoices and engagement letters generated by defendant should not have been withheld.”³¹

Footnotes

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. 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).
21. Hickman v. Taylor, 329 U.S. 495 (1947).
22. See generally Koump v. Smith, 25 N.Y.2d 287 (1969).
23. 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).
24. Slip Op. at *3 (citing, Delta Fin., 15 Misc. 3d at 316-17).
25. Id.
26. Id.
27. Ambac v. Countrywide, 27 N.Y.3d 616, 620 (2016).
28. Slip Op. at *3.
29. Id.
30. Id. (citing, In re Nassau Cnty. Grand Jury Subpoena Duces Tecum, 4 N.Y.3d 665, 679 (2005); Matter of Priest, 51 N.Y.2d at 69).
31. Id.

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.