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What constitutes a privileged communication under New York law?

Sep 30, 2014 · Brennan Ctr. for Justice at New York Univ. Sch. of Law v. U.S. Dep’t of Justice, 697 F.3d 184, 207 (2d Cir. 2012). II. Common Interest Privilege The common interest privilege exists in New York, but is not codified. Instead, the New York courts view the “common interest” privilege as an exception to the attorney-client privilege.

Can an attorney represent individual clients under joint client privilege?

Apr 03, 2019 · New York’s attorney-client privilege as codified at CPLR §4503 (a) protects against disclosure of a “confidential communication made between the …

Does the privilege protect communication between a client and attorney?

After Sunrise, several cases (including two cases from the Southern District of New York) held that the attorney-client privilege applies to a law firm’s consultations with its in-house ethics counsel — but in those cases, the law firm was not asserting the privilege against its own current client. See United States v.

Are consultants privileged to communicate with lawyers?

Jenkens & Gilchrist, 2004 WL 2712200 (S.D.N.Y. Nov. 23, 2004), the Honorable Shira Scheindlin of the U.S. District Court for the Southern District of New York held that the very same document was not protected because the attorney-client privilege had been waived. This article looks at the two decisions, which illustrate the exquisite ...

What are common sanctions for violating ethical practices for attorneys?

The most common penalties for violating ethical rules are disbarment, suspension, and public or private censure. Disbarment is the revocation of an attorney's state license, permanently rendering the attorney unqualified to practice law.

What are the exceptions to the duty of confidentiality?

Rule 1.6 also provides exceptions to the duty of confidentiality, including where a client provides informed consent or where the disclosure is impliedly authorized in order to carry out the representation.Mar 14, 2018

What is unethical for a lawyer?

Attorney misconduct may include: conflict of interest, overbilling, refusing to represent a client for political or professional motives, false or misleading statements, knowingly accepting worthless lawsuits, hiding evidence, abandoning a client, failing to disclose all relevant facts, arguing a position while ...

Under what circumstances can an attorney reveal information about the client that the attorney obtained during the representation of that client?

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

When can a lawyer break confidentiality?

When can a solicitor breach confidentiality? A solicitor cannot be under a duty of confidentiality if the client is trying to use them or the firm to commit fraud or other crimes. A client cannot make a solicitor the confidant of a crime and expect them to close up their lips upon any secret they dare to disclose.Jan 7, 2021

What are the four exceptions to confidentiality?

The following situations typically legally obligate therapists to break confidentiality and seek outside assistance:Detailed planning of future suicide attempts.Other concrete signs of suicidal intent.Planned violence towards others.Planned future child abuse.Formerly committed child abuse.Experiencing child abuse.More items...•Jan 15, 2019

What are some ethical violations?

Ethics violations such as discrimination, safety violations, poor working conditions and releasing proprietary information are other examples. Situations such as bribery, forgery and theft, while certainly ethically improper, cross over into criminal activity and are often dealt with outside the company.Aug 14, 2015

What is unethical behavior examples?

5 Most Common Unethical Behaviors Ethics Resource Center (ERC) SurveyMisuse of company time. Whether it is covering for someone who shows up late or altering a timesheet, misusing company time tops the list. ... Abusive Behavior. ... Employee Theft. ... Lying to employees. ... Violating Company Internet Policies.Jul 2, 2016

What is professional misconduct for a lawyer?

The expression professional misconduct in the simple sense means improper conduct. In law profession misconduct means an act done willfully with a wrong intention by the people engaged in the profession. It means any activity or behaviour of an advocate in violation of professional ethics for his selfish ends.

What is rule of confidentiality?

Further, under section 129 of the Act, no one shall be compelled to disclose to the court any confidential communication that has taken place between him or her and his or her attorney, unless they have offered themselves as a witness, in which case they may be compelled to disclose any communication as may appear to ...May 8, 2019

Under what circumstances can an attorney reveal information about the client that the attorney obtained during the representation of that client quizlet?

A lawyer shall reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm.

Who has a duty of confidentiality?

In common law jurisdictions, the duty of confidentiality obliges solicitors (or attorneys) to respect the confidentiality of their clients' affairs. Information that solicitors obtain about their clients' affairs may be confidential, and must not be used for the benefit of persons not authorized by the client.

United States v. Kovel: Extending The Privilege to Nonlawyers

The seminal decision extending the attorney-client privilege to conversations with a nonlawyer was United States v. Kovel, 296 F.2d 918 (2d Cir. 19...

Calvin Klein: Thumbs Down on Public Relations Agents

Judge Friendly’s decision in Kovel said nothing about communications with public relations agents. The first case to address that issue was a trade...

Copper Market Antitrust Litigation: Thumbs Up on PR Agents

The following year, however, in In re Copper Market Antitrust Litigation, 200 F.R.D. 213 (S.D.N.Y. 2001) (Laura Taylor Swain, J.), the court recogn...

Twentieth Century Fox: Independent Hollywood Contractors Are Privileged

Twentieth Century Fox Film Corp. v. Marvel Enterprises, Inc., 2002 WL 31556383 (S.D.N.Y. Nov. 15, 2002) (Henry Pitman, Magistrate Judge) — a case I...

in Re Grand Jury Subpoenas: PR Agents Win Again

In In re Grand Jury Subpoenas Dated March 24, 2003 Directed to (A) Grand Jury Witness Firm and (B) Grand Jury Witness, 265 F. Supp.2d 321 (S.D.N.Y....

Currency Conversion Fee Antitrust Litigation: Transaction Processing Companies Don’T Qualify

In In re Currency Conversion Fee Antitrust Litigation, 2003 WL 22389169 (S.D.N.Y. 2003) (William Pauley, J.), a class action alleging a price-fixin...

Asia Pulp & Paper: Financial Consultant was Not A Privileged Person

Export-Import Bank of the U.S. v. Asia Pulp & Paper Co., Ltd., 232 F.R.D. 103 (S.D.N.Y. 2005) (James C. Francis IV, magistrate Judge), was a suit b...

in Re Adelphia Communications Corporation: Credit Consultants Pass Muster

In the bankruptcy proceeding entitled In re Adelphia Communications Corporation, 2007 WL 601452 (Bankr. S.D.N.Y. 2007) (Cecelia Morris, Bankr. J.),...

Sieger v. Zak: Business Consultants Qualify For The Privilege

Sieger v. Zak, 18 Misc.3d 1143(a) (Nassau County Supreme Ct. 2008) (Stephen Bucaria, J.) — one of two state court cases on the subject — was a suit...

Payton Lane Nursing Home: Construction Supervisors Make The Grade

In American Manufacturers Mutual Insurance Co. v. Payton Lane Nursing Home, Inc., 2008 WL 5231831 (E.D.N.Y 2008) (A. Kathleen Tomlinson, Magistrate...

What was the case of Thelen Reid v. Marland?

Cal. 2007) (Vaughan R. Walker, C.J.). In 1997, Francois Marland had approached Reid & Priest, claiming that he had in his possession an undisclosed “fronting agreement” through which the French bank Crédit Lyonnais had illegally bid at auction on the insurance assets of Executive Life Insurance Company (ELIC) after ELIC became insolvent. Marland wanted to know whether he could obtain a financial benefit by divulging this information to parties in the United States. (Reid & Priest merged with Thelen, Marrin, Johnson & Bridges in 1998.) Eventually, Thelen filed a qui tam suit for Marland’s benefit.

Do law firms have ethics advisors?

Virtually every large law firm has an in-house ethics advisor or General Counsel, a lawyer in the firm who is well versed in the rules of ethics as well as the various state and federal statutes and court rules that regulate lawyers. The proliferation of in-house ethics advisors, which began in earnest only in the 1990s, is a positive development. But a law firm’s consultation with an in-house ethics advisor may or may not be protected by the attorney-client privilege, especially when the firm asserts the privilege against a current or former client.

What is the common interest doctrine in Katz v. AT&T?

433, 436 (E.D. Pa. 2000), the Miron court said that where parties with “shared interest in actual or potential litigation against a common adversary” share privileged information pursuant to this shared goal, the common interest doctrine preserves the attorney-client privilege with respect to that information. Even if the court accepted Ms. Guerin’s assertion that the Memorandum was “not sent in connection with any on-going litigation,” the Miron court was nevertheless satisfied that BDO Seidman and Jenkens & Gilchrist were parties with “shared interest in actual or potential litigation against a common adversary.” The Memorandum sought legal advice from BDO Seidman’s outside counsel in connection with potential litigation and tax liability. At the time the Memorandum was allegedly faxed to Ms. Guerin, both BDO Seidman and Jenkens & Gilchrist faced the same legal issues concerning their standing with the IRS and common clients. Moreover, BDO Seidman and Jenkens & Gilchrist were co-defendants in the pending Denney litigation, which concerned similar issues of tax liability. Thus, the Miron court was satisfied that “the common interest doctrine would protect the BDO Memorandum’s privileged status if the communication between BDO Seidman and Jenkens & Gilchrist were found to be intentional.”

What is the lesson of the Kerekes Memorandum?

The saga of the Kerekes Memorandum holds many lessons. For those seeking to preserve the privilege, the main lesson is that defending the attorney-client privilege is like defending an ancient walled city — the task calls for building multiple layers of protection. Here, BDO argued that (1) the Kerekes Memorandum was never intentionally shared with any stranger to the attorney-client relationship; (2) if it was intentionally disclosed, the person who disclosed it lacked authority to do so; and (3) if the person had authority to disclose it, the disclosure was protected by the common interest doctrine.

What is COBRA tax shelter?

In 1999, the Texas-based law firm Jenkens & Gilchrist developed a complex tax shelter product known as Currency Options Bring Reward Alternatives (COBRA). A taxpayer using COBRA would form a partnership to engage in foreign currency option transactions. By using an artificially high basis for his partnership contribution, the taxpayer could create large losses that Jenkens & Gilchrist claimed would offset the huge capital gains that wealthy investors were taking at the height of the dot-com stock frenzy.

Who is Roy Simon?

Roy Simon is the Howard Lichtenstein Distinguished Professor of Legal Ethics at Hofstra University School of Law and is the author of Simon’s New York Code of Professional Responsibility Annotated, published annually by Thomson West.

What was the Sieger v. Zak case?

Sieger v. Zak, 18 Misc.3d 1143 (a) (Nassau County Supreme Ct. 2008) (Stephen Bucaria, J.) — one of two state court cases on the subject — was a suit alleging breach of fiduciary duty by the majority shareholder and principal manager of PowerSystems International, Inc., which manufactured specialized trailers sold primarily to the military to service command posts and mobile hospitals. Plaintiffs were minority shareholders who had each invested $25,000 in 1995 to get the company started. By early 2004, the company was making more than $1.2 million a year in profits, and plaintiffs suggested to Zak that he sell the entire company in order to liquidate their investment. Zak then met with a business consultant named John Magee who offered to make recommendations to PowerSystems’ board of directors concerning the current and future value of the company. Magee and PowerSystems entered into a confidentiality agreement whereby Magee agreed to keep confidential pricing, customer and supplier lists, operating data, and other information obtained in the course of providing consulting services to the company. Magee also prepared an “engagement letter,” which formally outlined the services he intended to perform for PowerSystems. In the engagement letter, Magee undertook to develop a strategy and time line for “monetizing the shareholders’ investment” in PowerSystems.

What is the most recent case in the third party consultant line?

The most recent case in the third-party consultant line is a state court case, Mt. McKinley Insurance Co. v. Corning Inc., 602454/2002 (N.Y. County Supreme Ct., Dec. 13, 2009) (Eileen Bransten, J.). That case asked whether a lawyer’s talks with an insurance broker to get advice and information to help a client were protected by the attorney-client privilege.

What was the In re Currency Conversion Fee Antitrust Litigation?

2003) (William Pauley, J.), a class action alleging a price-fixing conspiracy by Visa and Mastercard and their member banks with respect to currency conversion fees, plaintiffs moved to compel a bank (First USA) to produce documents that First USA had disclosed to employees of a third party, First Data Resources, Inc. (First Data), which provided “computing services, consulting services, and other support services to credit card issuers.” First USA, citing In re Copper Market Antitrust Litigation and other cases, claimed that the First Data Documents remained privileged because the First Data employees were the “functional equivalent” of First USA employees.

What was the first case to address the issue of public relations?

The first case to address that issue was a trademark infringement action, Calvin Klein Trademark Trust v. Wachner, 198 F.R.D. 53 (S.D.N.Y. 2000) (Jed S. Rakoff, J.). In May 2000, in anticipation of filing a lawsuit on behalf of Calvin Klein, the law firm of Boies, Schiller & Flexner LLP (BSF) retained the public relations firm of Robinson Lerer & Montgomery (RLM) to act as a “consultant” to BSF for certain communications services related to BSF’s representation of Calvin Klein, Inc. (CKI). Defendants contended that BSF had retained RLM solely “to wage a press war against the defendant,” but plaintiffs said that they had retained RLM to help BSF “to understand the possible reaction of CKI’s constituencies to the matters that would arise in the litigation, to provide legal advice to CKI, and to assure that the media crisis that would ensue — including responses to requests by the media about the law suit and the overall dispute between the companies — would be handled responsibly…” The court denied Calvin KIein the protection of the attorney-client privilege, for at least three reasons.

What is the role of the media in public opinion?

The media, prosecutors, and law enforcement personnel in high profile cases often engage in activities that color public opinion, not only to the detriment of the subject’s general reputation but also, in extreme cases, to the detriment of his or her ability to obtain a fair trial.

What was the Fox vs Marvel case?

Marvel Enterprises, Inc., 2002 WL 31556383 (S.D.N.Y. Nov. 15, 2002) (Henry Pitman, Magistrate Judge) — a case I unintentionally omitted from my 2003 article — originated as a copyright and licensing dispute over the “X-Men” characters. Fox withheld about 15 documents that Fox had shown to certain independent contractors. In opposition to a motion to compel, Fox argued that the independent contractors to whom disclosure was made were directly involved in the production of X-Men2 and that disclosure to them did not operate as a waiver of the privilege because “they functioned as employees and Fox’s economic decision to conduct its business through independent contractors as opposed to employees should not affect the scope of its privilege.”

What was the attorney-client privilege before 1877?

Under the common law, an attorney ordinarily could not waive the attorney-client privilege on behalf of a deceased client, but the common law recognized an exception relating to wills — “after the testator’s death,” according to an early 1900s edition of Professor Wigmore’s treatise, “the attorney is at liberty to disclose all that affects the execution and tenor of the will.”

What is the fiduciary exception?

The fiduciary exception states that in some situations a fiduciary has no attorney-client privilege against an estate’s beneficiaries. [ See generally, Ronald C. Minkoff, “The Fiduciary Exception to the Attorney-Client Privilege,” NYLJ, 5/1/1990.]

What is NY Rule 4.4(b)?

NY Rule 4.4(b) (CPLR §1200.35): “A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender”

What is the New York State law?

New York Rule is Similar to Pennsylvania’s Rule 4.4(b): “A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender”

When did the Model Rule 4.4(b) come into effect?

Model Rule 4.4(b) (adopted in 2002): “if a lawyer receives a document the lawyer knows or reasonably should know was sent inadvertently, he or she must promptly notify the sender”

Who shall not read a document?

“A lawyer who receives a document and has reasonable cause to believe that the document was inadvertently sent shall not read the document or, if he or she has begun to do so, shall stop reading the document, promptly notify the sender, and return the

Is there a subject matter waiver for privileged information?

If found to be inadvertent, and the production does not implicate intentional waiver or selective use of privileged information as both a sword and shield, there should be no subject matter waiver

What is the rule for examining a written representation?

has a different Rule 4.4(b): “A lawyer who receives a writing relating to the representation of a client and knows, before examining the writing, that it has been inadvertently sent, shall not examine the writing, but shall notify the sending party and abide by the instructions of the sending party

Is a report required under CPLR 3101(d)(1)(i)?

Reports not required under CPLR §3101(d)(1)(i), and should not be discoverable absent a showing of “substantial need” and “undue hardship”A party is not obligated pursuant to CPLR 3101(d)(1)(i) to disclose his expert’s report; that subdivision provides for the disclosure in reasonable detail of the subject matter on which the expert is expected to testify and a summary of the grounds for the expert’s opinion. The report itself constitutes material prepared for litigation and is not subject to disclosure unless the party seeking disclosure has a substantial need for the report and is unable without undue hardship to obtain its substantial equivalent by other means.