Wednesday, January 7, 2015

On Intra-firm Privilege

Several recent updates on questions regarding intra-firm privilege:

"Novel Privilege Issue Raised in Suit Against Law Firm" --
  • "A malpractice case against Schnader Harrison Segal & Lewis in Manhattan's Commercial Division has raised a broader issue for large firms: whether communications between a firm's general counsel and its attorneys are privileged from clients."
  • "On Dec. 5, Acting Supreme Court Justice Melvin Schweitzer in Stock v. Schnader Harrison Segal & Lewis, 651250/13, ordered Schnader to hand over to a former client internal firm communications between its general counsel and its attorneys. Schnader is appealing that decision, saying the issue of "in-house law firm attorney-client privilege" is a matter of first impression in New York state courts and deserves a second look."
  • "Howard Elman, a managing member at Matalon Shweky Elman who frequently defends law firms and who is not involved in this case, said this is a sensitive concern for firms. 'Law firms, I'm sure, will be paying attention to this case because the law is not clear in New York,' he said. 'Conflict of interest cases are coming up more and more in litigation, and I think conflict scenarios are the classic type of things that lawyers will go to their general counsel about. The notion that a general counsel's communications with an attorney can be open for discovery is not good one' for law firms, he added.
On the West Coast: "California Case Embraces Intrafirm Privilege for Consultation With Firm’s Inside Counsel" -
  • "The attorney-client privilege shields a lawyer's confidential communications with her law firm's in-house attorney about a dispute with a current client provided that a genuine attorney-client relationship exists between them, the California Court of Appeal, Second District, decided Nov. 25 (Edwards Wildman Palmer v. Superior Court (Mireskandari), 2014 BL 331662, Cal. Ct. App. 2d Dist., No. B255182, 11/25/14)."
  • "The ruling is the first published California appellate decision directly recognizing the attorney-client privilege for legal discussions within law firms about problems with a current client's representation."
And the ever watchful Bill Freivogel notes another recent decision on the topic:
  • "Moore v. Grau, 2014 N.H. Super. LEXIS 20 (N.H. Super. Ct. Dec. 15, 2014). Following recent high court rulings in Massachusetts, Georgia, and Oregon, the judge ruled that a law firm could assert privilege for internal communications during a representation. The opinion has a particularly good discussion of how smaller firms might structure things to keep the privilege."

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