The First Department, in an extensive full-fledged opinion by Justice Friedman (which cannot be fairly summarized here), determined the communications between attorneys in a law firm and the firm’s in house counsel were protected by attorney-client privilege and were not subject to the fiduciary exception to the privilege. The communications were sought by plaintiff, a former client of the firm, who brought the instant malpractice action against the firm:
The primary issue on this appeal is whether attorneys who have sought the advice of their law firm’s in-house general counsel on their ethical obligations in representing a firm client may successfully invoke attorney-client privilege to resist the client’s demand for the disclosure of communications seeking or giving such advice. We hold that such communications are not subject to disclosure to the client under the fiduciary exception to the attorney-client privilege … because, for purposes of the in-firm consultation on the ethical issue, the attorneys seeking the general counsel’s advice, as well as the firm itself, were the general counsel’s ” real clients'” … . Further, we decline to adopt the “current client exception,” under which a number of courts of other jurisdictions … have held a former client entitled to disclosure by a law firm of any in-firm communications relating to the client that took place while the firm was representing that client. Because we also find unavailing the former client’s remaining arguments for compelling the law firm and one of its attorneys to disclose the in-firm attorney-client communications in question, we reverse the order appealed from and deny the motion to compel. Stock v Schnader Harrison Segal & Lewis LLP, 2016 NY Slip Op 05247, 1st Dept 6-30-16
ATTORNEYS (PRIVILEGE, COMMUNICATIONS BETWEEN ATTORNEYS IN A LAW FIRM AND THE FIRM’S IN HOUSE COUNSEL CONCERNING A FORMER CLIENT’S CASE PROTECTED FROM DISCLOSURE IN THE FORMER CLIENT’S MALPRACTICE ACTION)/PRIVILEGE (ATTORNEY-CLIENT,COMMUNICATIONS BETWEEN ATTORNEYS IN A LAW FIRM AND THE FIRM’S IN HOUSE COUNSEL CONCERNING A FORMER CLIENT’S CASE PROTECTED FROM DISCLOSURE IN THE FORMER CLIENT’S MALPRACTICE ACTION)/ATTONNEY-CLIENT PRIVILEGE (COMMUNICATIONS BETWEEN ATTORNEYS IN A LAW FIRM AND THE FIRM’S IN HOUSE COUNSEL CONCERNING A FORMER CLIENT’S CASE PROTECTED FROM DISCLOSURE IN THE FORMER CLIENT’S MALPRACTICE ACTION)/FIDUCIARY EXCEPTION (ATTORNEY-CLIENT PRIVILEGE, COMMUNICATIONS BETWEEN ATTORNEYS IN A LAW FIRM AND THE FIRM’S IN HOUSE COUNSEL CONCERNING A FORMER CLIENT’S CASE PROTECTED FROM DISCLOSURE IN THE FORMER CLIENT’S MALPRACTICE ACTION)/MALPRACTICE (ATTORNEYS, COMMUNICATIONS BETWEEN ATTORNEYS IN A LAW FIRM AND THE FIRM’S IN HOUSE COUNSEL CONCERNING A FORMER CLIENT’S CASE PROTECTED FROM DISCLOSURE IN THE FORMER CLIENT’S MALPRACTICE ACTION)