In many cases, clients tend to place their trust, and often their livelihood, in the hands of their attorney. This expectation can be easily traced back to the attorney-client privilege, one of the oldest common-law privileges for confidential communications.  In some instances, the attorney-client privilege may extend to third parties under the common-interest doctrine, which “is an exception to the traditional rule that the presence of a third party, not an agent or employee of counsel, at a communication between counsel and a client is sufficient to deprive the communication of the confidentiality which is one of the pillars of the privilege” (Ambac Assur. Corp. v Countrywide Home Loans, Inc., 2013 WL 5692013 [Sup Ct, NY County 2013]). Problem solved, right? A recent decision from Manhattan Commercial Division Justice Andrea Masley, however, demonstrates how easily the attorney-client privilege can be waived under the common-interest doctrine.

Background:

In TGT, LLC v. Joseph Meli, et al., Petitioner, a limited liability company organized in the fine state of Minnesota, brought a turnover proceeding to enforce a judgment against the respondents in connection with their fraud scheme involving sales of tickets to Broadway and live-music events. During the proceeding, Petitioner moved to compel respondent Hecht Partners, LLP (“Hecht”), former attorneys for respondent Joseph Meli (“Joseph”), to respond to Petitioner’s judgment enforcement subpoena.

Before argument on the motion, Hecht served Petitioner with a privilege log containing over 700 entries, many of which asserted the common-interest privilege as to communications involving Joseph’s father, respondent Richard Meli (“Richard”, together with Joseph “Individual Respondents”), while Joseph was incarcerated. As a result, the court granted in part and adjourned in part Petitioner’s motion in order to allow Petitioner to review the privilege log and to require the parties to provide additional briefing on the common-interest issue.

During the supplemental briefing, Petitioner argued that Hecht could not demonstrate its burden that any of these communications were privileged on the basis that (i) there was nothing in the record to show Richard was acting as agent for Joseph during Joseph’s incarceration, or that Richard’s participation was necessary to facilitate attorney-client communications; (ii) the Individual Respondents did share not a common legal interest in connection with any pending or reasonably anticipated litigation; and (iii) the attorney work-product doctrine did not attach to documents that could have been created by a layperson.

In opposition, Hecht argued that the documents and communications were protected from disclosure because (i) the communications with Richard were protected because Richard served as Joseph’s agent (i.e., Richard served as Joseph’s power of attorney and signed the engagement agreement with Hecht on Joseph’s behalf); (ii) the attorney-client communications with the Individual Respondents were protected under the common-interest doctrine; and (iii) the documents were protected under the attorney work-product doctrine.  Justice Masley rejected all of Hecht’s arguments.

First, the Court found that Hecht did not provide any evidence to demonstrate (i) that Joseph had a reasonable expectation that the communications between Hecht and Richard, in his capacity as Joseph’s attorney-in-fact, would be confidential; and (ii) how Richard’s participation was necessary to advance attorney-client communications during Joseph’s period of incarceration.

Second, the Court held that Hecht failed to demonstrate how the common-interest doctrine applied to communications with Richard. Specifically, the Court stated that the fact the Individual Respondents worked together in transferring assets and/or funding a trust without violating the restitution orders and judgments against Joseph, did not mean they reasonably anticipated enforcement litigation. Simply put, the Court opined that the Individual Respondents failed to make a substantial showing of the need for a common defense, rather than the existence of a common problem, in order to invoke the protections of the common-interest doctrine.

Third, the Court dismissed Hecht’s theory that the documents and communications were protected under the attorney work-product doctrine based on the fact many of the entries did not relate to legal advice, but rather dealt with scheduling calls and discussing fees.

Upshot

TGT, LLC, demonstrates the substantial risk and uncertainty of sharing information with a third-party during the course of litigation. In addition, this decision serves as a helpful example of the distinction between a “common legal interest” versus a “common problem” among the parties in determining whether the common-interest doctrine applies. And, as set forth in TGT, LLC, a common problem is not enough.  

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