[author: Serene Carino]
It is commonplace knowledge that the attorney-client privilege protects confidential communications relating to legal advice between a client and an attorney from disclosure. However, a recent decision from Justice Robert Reed of the Manhattan Commercial Division in Brawer v. Lepor serves as a gentle reminder that “communications do not automatically obtain privilege status merely because they were created or communicated by an attorney.”
Brawer involved a dispute among the founders of a company called MedReviews LLC that publishes medical journals, podcasts, webcasts, and seminars. Plaintiff Michael Brawer, a minority member of the company, commenced a lawsuit against the company’s President, Vice President, and majority member due to an alleged mishandling of company assets. In discovery, plaintiff moved to compel defendants to disclose certain withheld documents, and defendants asserted that the documents were withheld on the basis of the attorney-client privilege. After an in-camera review of the withheld documents, the court substantially denied plaintiff’s motion with the exception of requiring the production of defendants’ retention agreements, engagement letters, and invoices from their counsel.
It’s no secret that New York courts generally favor liberal discovery. And the attorney-client privilege is narrowly interpreted to avoid any tension with this policy of open discovery.
To be precise, the attorney-client privilege applies to confidential communications between a client and an attorney only when such communications are made for the purpose of giving or receiving legal advice. In Brawer, the court found that defendants’ attorney was hired to provide legal advice, and that therefore the attorney’s communications with the company’s officers were not discoverable.
The attorney-client privilege also covers communications of an attorney’s agent, such as consulting experts hired by counsel to assist in preparing for a case. In Brawer, the court found that the communications between the defendants, the attorney, and the consulting experts were therefore protected from disclosure.
Under the common interest doctrine, attorney-client communications shared with a third party or among defendants to an action are privileged if there exists a “common legal interest” among the parties in pending or anticipated litigation. In Brawer, the court found that the withheld communications as between the various defendants were privileged because the parties shared a common legal interest in the defense of plaintiff’s action. The court reasoned that when an attorney represents various clients on a matter of common interest, any confidential communications exchanged between the parties are not subject to disclosure.
Plaintiff’s motion, however, was not denied in its entirety insofar as the court held that “retention and engagement letters and invoices [from the attorneys] are discoverable.” The cases cited by the court stand for the further proposition that fee arrangements between attorney and client, or any agreement for legal fees to be paid for by a third person, do not relate to legal advice and therefore are not protected by the attorney-client privilege, thus highlighting the propositions announced at the outset that the mere participation of an attorney in confidential communications does not automatically protect such communications from disclosure.
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