Summary
holding that privilege belongs to former co-clients and cannot be "unilaterally waiv[ed]" to benefit different co-plaintiffs who are unaffiliated with the original privilege
Summary of this case from Ashland Inc. v. G-I Holdings Inc.Opinion
2013-06-13
ARKIN KAPLAN RICE LLP, et al., Plaintiffs–Respondents, v. Howard KAPLAN, et al., Defendants–Appellants.
Kaplan Rice LLP, New York (Christopher J. Roche of counsel), for appellants. Kasowitz, Benson, Torres & Friedman LLP, New York (Joseph A. Piesco, Jr., of counsel), for respondents.
Kaplan Rice LLP, New York (Christopher J. Roche of counsel), for appellants. Kasowitz, Benson, Torres & Friedman LLP, New York (Joseph A. Piesco, Jr., of counsel), for respondents.
TOM, J.P., FRIEDMAN, FREEDMAN, FEINMAN, JJ.
Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered on or about January 28, 2013, which, among other things, referred to a judicial hearing officer the issue of whether plaintiff Lisa Solbakken was entitled to certain disclosure, unanimously affirmed, without costs.
Supreme Court providently exercised its discretion by directing defendants' counsel, Ciampi, LLC, to submit certain communications in plaintiff Lisa Solbakken's legal file for an in camera review and referring resolution of the discovery issue to a judicial hearing officer ( see CDR Creances S.A.S. v. Cohen, 77 A.D.3d 489, 491, 909 N.Y.S.2d 697 [1st Dept. 2010];Veras Inv. Partners, LLC v. Akin Gump Strauss Hauer & Feld LLP, 52 A.D.3d 370, 373, 860 N.Y.S.2d 78 [1st Dept. 2008] ).
Although we only address the propriety of the in camera review, we note that communications between defendants Howard Kaplan, Michelle Rice, Solbakken, and Ciampi LLC, made during the course of Ciampi's joint representation of them, fall within the scope of the attorney-client privilege because Kaplan, Rice, Solbakken, shared “a common interest” ( American Re–Insurance Co. v. United States Fid. & Guar. Co., 40 A.D.3d 486, 490–491, 837 N.Y.S.2d 616 [1st Dept. 2007];Finn v. Morgan, 46 A.D.2d 229, 235, 362 N.Y.S.2d 292 [4th Dept. 1974] ), and consulted Ciampi for their “mutual benefit” ( Martin v. Slifkin, 249 App.Div. 860, 293 N.Y.S. 213 [2d Dept. 1937] ).
Those communications are not privileged within the context of Solbakken's adverse litigation against Kaplan and Rice ( see Matter of McCormick, 287 A.D.2d 457, 730 N.Y.S.2d 880 [2d Dept. 2001];Matter of Beiny [Weinberg], 129 A.D.2d 126, 139–140, 517 N.Y.S.2d 474 [1st Dept. 1987];Goldberg v. American Home Assur. Co., 80 A.D.2d 409, 413, 439 N.Y.S.2d 2 [1st Dept. 1981];Matter of Friedman, 64 A.D.2d 70, 84, 407 N.Y.S.2d 999 [2d Dept. 1978] ). However, those communications are privileged as against Solbakken's co-plaintiffs, who were not clients being jointly represented by Ciampi ( see Wallace v. Wallace, 216 N.Y. 28, 35–36, 109 N.E. 872 [1915];Doheny v. Lacy, 168 N.Y. 213, 224, 61 N.E. 255 [1901]; Hurlburt v. Hurlburt, 128 N.Y. 420, 424, 28 N.E. 651 [1891];Root v. Wright, 84 N.Y. 72 [1881];La Barge v. La Barge, 284 App.Div. 996, 135 N.Y.S.2d 317 [3d Dept. 1954];see alsoRestatement [Third] of Law Governing Lawyers § 75[1] ). “The privilege belongs to the client” and Solbakken cannot unilaterally waive it on defendants' behalf so as to benefit her coplaintiffs ( People v. Osorio, 75 N.Y.2d 80, 84, 550 N.Y.S.2d 612, 549 N.E.2d 1183 [1989];seeCPLR 3101[b], 4503[a][1]; Matter of Vanderbilt [Rosner–Hickey], 57 N.Y.2d 66, 453 N.Y.S.2d 662, 439 N.E.2d 378 [1982] ).