WHEN SEEKING DISCOVERY AND THE LITIGANT IS AN ATTORNEY

Yesterday I posted an earlier decision on this matter which also had a prior discovery issue on expert witnesses. This matter addresses the issue of privileged emails.

Theroux v Resnicow 2021 NY Slip Op 50622(U) Decided on July 7, 2021 Supreme Court, New York County Lebovits, J.:

"This action arises from an ongoing quarrel among neighbors, plaintiff Justin Theroux and defendants Norman and Barbara Resnicow, who live in a Manhattan co-op apartment building. Norman Resnicow is a senior equity partner at the law firm of Fox Horan & Camerini LLP. This court previously ordered defendants to produce to plaintiffs all responsive and non-privileged emails that Resnicow sent from his Fox Horan email account, and to provide a privilege log for those responsive Fox Horan emails that defendants were withholding on the ground of the attorney-client or spousal privileges. (See Theroux v Resnicow, 2020 NY Slip Op 51489[U], at *2, *5 [Sup Ct, NY County Dec. 16, 2020].)

This decision concerns seven emails between Norman Resnicow and other Fox Horan attorneys on Resnicow's firm email account. Defendants withheld those emails as shielded by the attorney-client privilege. Plaintiff disputed the claim of privilege and sought a ruling on the dispute from this court. This court previously notified the parties by email of its ruling that six of the emails (between Resnicow and a lawyer who was then an associate at the firm) were not privileged and must be produced, without providing the court's full reasoning for its conclusion. This decision explains the court's determination as to those six emails. In addition, the decision also resolves the parties' disagreement about the seventh email. The court concludes that the [*2]seventh email (between Resnicow and a senior firm lawyer) also is not privileged and must be produced.

DISCUSSION

The attorney-client privilege shields from disclosure communications (i) between a client and attorney, (ii) intended to be, and actually kept, confidential, and (iii) sent for the purpose of obtaining or providing legal advice. (See Ambac Assur. Corp. v Countrywide Home Loans, Ins., 27 NY3d 616, 623-624 [2016], citing CPLR 4503 [a] [1].) The privilege exists to enable clients to confide fully and freely in their attorneys, thereby furthering their effective representation. (See Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 377 [1991]; Matter of Priest v Hennessy, 51 NY2d 62, 67-68 [1980].)

At the same time, because the attorney-client privilege impedes the "truth-finding process" (Matter of Priest, 51 NY2d at 68), it must be narrowly construed. (See Spectrum, 78 NY2d at 377-378, citing Rossi v Blue Cross & Blue Shield of Greater New York, 73 NY2d 588, 593 [1989].) Determining whether a given communication comes within the scope of the privilege "is necessarily a fact-specific determination" (id. at 378), in which the burden is on the party asserting its protection to prove each element (see Ambac, 27 NY3d at 624).

As noted above, six of the emails at issue here are communications between Norman Resnicow and Eric Fidel, Esq., then a junior associate at Fox Horan. The seventh email is between Resnicow and William Brodsky, Esq., a Fox Horan counsel.[FN1] The emails themselves have not been provided to the court for in camera review; the parties have instead rested on their legal arguments and the applicable entries in defendants' privilege log. This court finds those materials sufficient to enable it to render the necessary privilege determinations.

This court concludes that defendants have not established that an attorney-client relationship existed between Resnicow and Fidel or between Resnicow and Brodsky, or that the emails at issue were sent for the purpose of obtaining or providing legal advice. Defendants thus have not shown that any of the seven emails at issue is shielded by the attorney-client privilege. (See e.g. Nacos v Nacos, 124 AD3d 462, 462-463 [1st Dept 2015] [holding that the privilege does not apply if movant does not establish that an attorney-client relationship existed among the parties.) The emails must be produced to plaintiff.

I. Whether the Emails at Issue Were Sent Between Attorney and Client

As its name reflects, the attorney-client privilege protects only communications that are sent in the context of an established attorney-client relationship. (See Priest, 51 NY2d at 68.) Although the relationship between attorney and client is contractual, a formal written agreement or payment of fees is not required. (See Pellegrino v Oppenheimer & Co., 49 AD3d 94, 99 [1st Dept 2008].) Rather, absent a written agreement, a court must consider "the words and actions of [*3]the parties to ascertain if an attorney-client relationship was formed." (C.K. Indus. Corp. v C.M. Indus. Corp., 213 AD2d 846, 848 [3d Dept 1995].) In conducting this assessment, an attorney's general statement that a party was a client, without more, is insufficient to demonstrate the relationship. (See Priest, 51 NY2d at 70).

Defendants have not shown that Resnicow entered into an attorney-client relationship either with Fidel or with Brodsky. There are no formal indicia of an attorney-client relationship, such as a letter of engagement or a retainer agreement. No fees were paid. Neither Fidel nor Brodsky has ever appeared on behalf of Resnicow in this action or any related matter. Neither Fidel's name nor Brodsky's name is on any of defendants' filings in this action. Defendants' privilege log does not identify any fact or document that might indicate that an attorney-client relationship existed. Nor, for that matter, can this court imagine a state of the world in which Fidel or Brodsky could be subjected to a legal-malpractice claim arising from assistance they provided Norman Resnicow—as would be possible were Fidel or Brodsky indeed acting as Resnicow's attorney. (See Cusack v Greenberg Traurig, LLP, 109 AD3d 747, 747 [1st Dep't 2013] [affirming dismissal of legal-malpractice claim for lack of an attorney-client relationship].)

In short, defendants have not offered any independent fact, beyond Norman Resnicow's own conclusory statements, to demonstrate that an attorney-client relationship did exist between Resnicow and Fidel or Resnicow and Brodsky. (See Priest, 51 NY2d at 70 [requiring introduction of independent facts to prove attorney-client relationship].)

Defendants misplace their reliance on 1050 Tenants Corp. v Lapidus (12 Misc 3d 1118 [Civ Ct, NY County 2006]). Lapidus treated work by a law-firm associate on a partner's personal litigation with a third party as protected by the attorney-client privilege (albeit finding a waiver of the privilege on the facts of the case). But the privilege-related dispute in Lapidus centered around a formal settlement agreement that had been signed by the associate for the partner when the associate was appearing in court on the partner's behalf. (See id. at 1120-1124.) Neither of those circumstances is present here.

In Stock v. Schnader Harrison Segal & Lewis LLP (142 AD3d 210 [1st Dept 2016]), also cited by defendants, the communications at issue were between attorneys at a firm and their law firm's in-house counsel, concerning the attorneys' ethical obligations in representing a firm client. Defendants have not introduced facts establishing that either Brodsky or Fidel was acting as in-house counsel for Fox Horan in speaking with Norman Resnicow; or that Resnicow was somehow otherwise a client of the firm.[FN2] (Cf. Stock, 142 AD3d at 213-215.)

No attorney-client relationship existed between Norman Resnicow and the other Fox [*4]Horan attorneys whom he emailed. The privilege thus does not shield the seven emails at issue.

II. Whether the Emails at Issue Were Sent to Get or Give Legal Advice

Although this court's conclusion that Norman Resnicow was not the client of either Fidel or Brodsky is sufficient to resolve the attorney-client-privilege issue here, for clarity the court addresses the additional question whether these emails sought legal advice. The privilege may apply to client communications with an attorney only if the communications were made for the purpose of obtaining or providing legal advice. (See Rossi, 73 NY2d at 593.)

Defendants have not established that Resnicow's emails with Fidel were for that purpose. (See Spectrum, 78 NY2d at 379-380 [discussing what it means to seek legal advice].) This was not an instance in which a client confided in his attorney to get the attorney's professional advice, assistance, or input. Rather, the record indicates that Fidel, a far more junior attorney than Resnicow, was simply performing a specific assigned task for him. In essence, Resnicow was obtaining free background research from a firm associate on a personal legal matter. Indeed, defendants' privilege log regarding their communications references only basic legal concepts, none of which specifically related to and integrated the facts of this case—as one would expect were Fidel providing legal advice to Resnicow.[FN3]

With respect to the Resnicow-Brodsky email, defendants suggest that Resnicow was engaging in a more substantive conversation with Brodsky—a much more senior and experienced lawyer than Fidel—about Resnicow's litigation strategy in this action. And the timing of the Brodsky email, relative to the Fidel emails, is consistent with this suggestion. But defendants have not provided the email itself for this court's review; and inference and conjecture about the email's substance based on the limited information appearing in the privilege log is not enough. Defendants have not, on this record, met their burden to show that this element of the privilege has been satisfied. Regardless, whether or not the email from Resnicow to Brodsky was sent for the purpose of obtaining legal advice, for the reasons discussed above it was not sent between client and attorney. It therefore still would not come within the privilege.

Accordingly, for the foregoing reasons, it is hereby

ORDERED that defendants must within 14 days produce to plaintiff the email between Norman Resnicow and William Brodsky that defendants previously withheld as privileged.

DATE 7/7/2021 Footnotes

Footnote 1:Defendants' privilege log suggests, but does not expressly indicate, that the emails were sent to and from Fidel and Brodsky on their Fox Horan email accounts.

Footnote 2:Similarly, in United States v Rowe (96 F3d 1294, 1296 [9th Cir 1996]), the court rested its ruling about the existence of an attorney-client relationship on the conclusion that the associates in that case were "assigned . . . to perform services on behalf of the firm," and therefore "were, effectively, in-house counsel." That is not the case here.

Footnote 3:Plaintiff also argues that the privilege does not shield the Resnicow-Fidel emails for the additional reason that Resnicow's secretary at Fox Horan was copied on two of the six emails. Given this court's determination on multiple other grounds that the Resnicow-Fidel emails must be produced, the court need not and does not reach this issue.

CONSEQUENCE OF NOT SEEKING PROTECTIVE ORDER PROMPTLY

A delay in seeking justice can result in a denial of justice.

ALROSE STEINWAY, LLC v. JASPAN SCHLESINGER, LLP, 2021 NY Slip Op 30620 - NY Co: Supreme Court March 5, 2021:

"CPLR 3103 provides that "[t]he court may ... make a protective order denying, limiting, conditioning, or regulating the use of any disclosure device. Such order shall be designated to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts."

Here defendants fail to meet their burden of proving that the attorney-client privilege was not waived. Even assuming that the attorney-client privilege attached to the 2/9 Email, the privilege was waived by defendants' failure to wait until November 27, 2019 to file an OSC seeking a protective order, 10 months after learning of the alleged inadvertent disclosure.

It is the burden of "the proponent of the privilege to prove that the privilege was not waived." (New York Times Newspaper Div. of N.Y. Times Co. v Lehrer McGovern Bovis., 300 AD2d 169, 172 [1st Dept 2002] [citation omitted].) For instance, "[d]isclosure of a privileged document generally operates

as a waiver of the privilege unless it is shown that the client intended to maintain the confidentiality of the document, that reasonable steps were taken to prevent disclosure, that the party asserting the privilege acted promptly after discovering the disclosure to remedy the situation, and that the parties who received the documents will not suffer under prejudice if a protective order against use of the document is issued."

(Id. [citations omitted] [emphasis added].) Again, "assuming that such a privilege existed, it was waived by the defendants' lack of due diligence." (Koramblyum v Medvedovsky, 19 AD3d 651, 652 [2d Dept 2005] [citations omitted].) After plaintiff refused to return the 2/9 Email, defendants waited an unreasonable 10 months to take any action to remedy the situation. Even after this court expressly welcomed defendants to bring an OSC in March 2019, which they could have filed at any time after learning of the disclosure, still no action was taken to remedy the situation until November 2019. The lack of defendants' due diligence to remedy the disclosure of this document cannot be ignored, and thus, any existing privilege was waived."

COUPLE'S ESTATE ATTORNEY CAUGHT IN DIVORCE

A question of ethics may also exist if the 2016 services affected a mutual estate plan of the 2013 services...would the attorney have the obligation to tell the wife in 2016 that her husband changed the estate plan they both created jointly in 2013?

Feighan v Feighan, 2020 NY Slip Op 01146, Decided on February 19, 2020, Appellate Division, Second Department:

"In 2013, the parties retained Eugenia M. Vecchio, Esq., to create certain estate planning documents, including the 2013 Robert E. Feighan Revocable Trust. In 2016, prior to the commencement of this action for a divorce and ancillary relief, the defendant retained Vecchio to create the 2016 Robert E. Feighan Revocable Trust, a trust funded by assets previously held in the 2013 Robert E. Feighan Revocable Trust. The Supreme Court, inter alia, in effect, granted that branch of the plaintiff's motion which was for the issuance of a subpoena to Vecchio for copies of the complete files of the plaintiff and the defendant relating to the 2013 Robert E. Feighan Revocable Trust and the 2016 Robert E. Feighan Revocable Trust. The defendant appeals.

"The attorney-client privilege shields from disclosure any confidential communications between an attorney and his or her client made for the purpose of obtaining or facilitating legal advice in the course of a professional relationship" (Ambac Assur. Corp. v Countrywide Home Loans, Inc., 27 NY3d 616, 623; see CPLR 4503[a][1]). Since this privilege shields pertinent information from disclosure, it must be narrowly construed (see Ambac Assur. Corp. v Countrywide Home Loans, Inc., 27 NY3d at 624). "The party asserting the privilege bears the burden of establishing its entitlement to protection by showing that the communication at issue [*2]was between an attorney and a client for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship,' that the communication is predominantly of a legal character, that the communication was confidential and that the privilege was not waived" (id., quoting Rossi v Blue Cross & Blue Shield of Greater N.Y., 73 NY2d 588, 593-594).

Generally, when an attorney represents two or more parties with respect to the same matter, the attorney-client privilege may not be invoked to protect confidential communications concerning the joint matter in subsequent adverse proceedings between the clients (see Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 137; Wallace v Wallace, 216 NY 28, 35; Matter of McCormick, 287 AD2d 457, 457). Here, Vecchio's joint representation of the parties in 2013 with respect to the preparation of estate planning documents, including 2013 revocable trusts executed by each of them, constituted representation with respect to the same matter, and we agree with the Supreme Court's determination that the attorney-client privilege could not be invoked to protect confidential communications concerning Vecchio's representation of the parties with regard to the defendant's 2013 revocable trust (see Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d at 137; Wallace v Wallace, 216 NY at 35; Matter of McCormick, 287 AD2d at 457-458). However, contrary to the court's determination, the attorney-client privilege could be invoked to protect confidential communications concerning Vecchio's representation of the defendant with regard to the 2016 revocable trust, as Vecchio's representation of the plaintiff ended in 2013, and the services provided to the defendant in 2016 did not constitute the same matter as the services provided to the parties in 2013."

ATTORNEY CLIENT PRIVILEGE NOT WAIVED BY THIRD-PARTY PRESENCE

Saint Annes Dev. Co. v Russ, 2018 NY Slip Op 00451, Decided on January 24, 2018, Appellate Division, Second Department:

"The plaintiff objected to certain of the defendants' discovery requests on the ground that the requested documents, which related to communications among the plaintiff, its attorney, and its assignors, were protected by the common-interest privilege. The defendants moved to compel the production of these documents, arguing that the common-interest privilege did not apply. Following an in camera review of the documents, the Supreme Court denied the defendants' motion.

The common-interest privilege is an exception to the traditional rule that the presence of a third party waives the attorney-client privilege (see Hyatt v State of Cal. Franchise Tax Bd., 105 AD3d 186, 205; Aetna Cas. & Sur. Co. v Certain Underwriters at Lloyd's, London, 176 Misc 2d 605, 611 [Sup Ct, NY County], affd 263 AD2d 367; In re Quigley Co., 2009 WL 9034027, *2-3, 2009 Bankr LEXIS 1352, *7-8 [Bankr SD NY]). To fall within that exception, the privileged communication must be for the purpose of furthering a legal, as opposed to a commercial, interest common to the client and the third party (see Hyatt v State of Cal. Franchise Tax Bd., 105 AD3d at 205; Delta Fin. Corp. v Morrison, 69 AD3d 669; U.S. Bank N.A. v APP Intl. Fin. Co., 33 AD3d 430, 431). "The legal interest that those parties have in common must be identical (or nearly identical), as opposed to merely similar" (Hyatt v State of Cal. Franchise Tax Bd., 105 AD3d at 205; see United States v Doe, 429 F3d 450, 453 [3d Cir]; F.D.I.C. v Ogden Corp., 202 F3d 454, 461 [1st Cir]). Moreover, the communication must "relate to litigation, either pending or anticipated, in order for the exception to apply" (Ambac Assur. Corp. v Countrywide Home Loans, Inc., 27 NY3d 616, 620; see Hyatt v State of Cal. Franchise Tax Bd., 105 AD3d at 205).

Here, the Supreme Court properly denied the defendants' motion to compel the production of the subject documents, as these documents were protected by the common-interest [*2]privilege."