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 attorney or his or her employee and the client in...
cover the client's identity. In re Kaplan, 8 N.Y.2d 214, 168 N.E.2d 660, 203 N.Y.S.2d 836 (1960). The attorney-client privilege generally protects from disclosure those communications made by the client to the attorney while the latter is acting in his professional capacity where the client is seeking legal advice of
Bacon v. Frisbie, 80 N.Y. 394, 400 (1880); see also Priest v. Hennessy, 51 N.Y.2d 62 (1980). 2. "The lawyer-client privilege rests on the need for the advocate and counselor to know all that relates to the client’s reasons for seeking representation if the professional mission is to be carried out.” Trammel v.
Dec 27, 2021 · Some have also argued that the underlying New York statute, N.Y. Civil Practice Law & Rules § 3103, doesn't authorize an injunction such as Justice Wood's, and addresses only protective orders ...
The inquirer is in-house counsel to a limited liability company engaged in the business of shopping center development. In that capacity, the inquirer is the “public face” of the developer and represents the developer before various government bodies to secure required land use permits and approvals.
Absent the application of state or local ordinances that prohibit or regulate the practice, and subject to the qualifications set forth in this opinion, DR 7-104 (A) (1) permits a lawyer representing a private party before a town planning board to communicate with individual planning board members about pending SEQRA, site plan and subdivision determinations provided: (a) the proposed communications solely concern municipal development policy issues; and (b) the lawyer gives planning board counsel reasonable advance notice of the proposed communications.
The attorney client privilege is traditionally described as one of the oldest privileges for confidential communications recognized at common law. Swidler & Berlin v. United States, 118 S.Ct. 2081, 2084-85 (1998). Yet, the application of the privilege to the communications of government attorneys and their clients has received relatively little attention either in the case law or the academic literature. As any public lawyer recognizes, there are unique aspects of government practice that complicate application to government lawyers of privilege rules designed for private practitioners. For example, even identifying the government lawyer’s client in a particular setting can be problematic. Is a city attorney’s client the city, the department to which the lawyer is assigned, or an individual public official? Does the identity of the client depend upon the particular legal issue being addressed? The role of the government lawyer also can be very different from the role of a private practitioner in an analogous setting. It is generally thought that a public lawyer has a special responsibility to temper the interest in attaining a client’s goal with assuring that the public interest is served. These differences have affected the way in which court’s have applied the attorney-client privilege to communications between government lawyers and public officials and others.
At least some communications that are clearly privileged for private entities and their counsel, may not be protected when they involve government attorneys and public officials because of the overriding public interest in ensuring adherence to the law.
First, the identity of the government lawyer’s client is not always obvious. Second, it may be that the public interest in a particular situation outweighs any perceived need for confidentiality.
Although the decision in Reed v. Baxter -- that the members of the City Council did not share the same interests as the city executives – seems incorrect, the case suggests that close attention must be paid to the nature of the legal interests of individuals who participate in meetings where legal advice is communicated. While it is the case that the City can act only through its officials and that in some sense all city officials should be considered clients, there may be times when some of those officials have interests that are not parallel to the City’s interests. Baxter suggests that it would be prudent for city attorneys to create a record of the need for legal advice for each of the officials who attend a meeting with a city attorney for the receipt of legal advice. In addition, care should be taken to ensure that tangentially interested parties not be included in such meetings. These issues can arise frequently in the context of employment litigation (as in Baxter itself), as well as when representatives of various interest groups are invited to discuss the resolution of a particular legal issue. The mere presence of a city attorney providing advice in such a situation is not adequate to ensure that the communications are privileged from disclosure in subsequent civil litigation brought by a private party.