By Ronald C. Minkoff
Like so many New York lawyers, I was happy when the First Department decided Stock v. Schnader Harrison, Segal & Lewis, LLP, 35 N.Y.S.3d 31 (1st Dept. 2016 (Stock). Indeed, I was probably happier: The First Department’s decision, which applied the attorney-client privilege to cover all communications between a law firm’s in-house counsel and firm attorneys, made my job as firm General Counsel a great deal easier. I had also written an article in this publication last November criticizing the trial court’s ruling in Stock — a ruling the First Department overturned — and pointing out how out-of-step the court had been with recent rulings in other states that had upheld the law firm in-house privilege. See R. Minkoff, “Law Firm In-House Privilege Revisited,” New York Legal Ethics Reporter (Feb. 2015), citing St. Simons Waterfront, LLC v. Hunter, Maclean, Exley & Dunn, P.C., 293 Ga. 419 (2013) (St. Simons) and RFF Family Partnership, L.P. v. Burns & Levinson, LLP, 465 Mass. 702 (2013) (RFF). Indeed, my firm signed on to the amicus brief which more than a dozen prominent New York law firms had submitted to the First Department supporting the law firm’s position.
But in deciding Stock, the First Department gave the legal community more than it had bargained for. Though the holding is quite clear and the result sensible, the First Department’s underlying logic should deeply trouble all New York lawyers and their clients. Why? Because in adopting the broadest possible view of the in-house law firm privilege, the Court played fast and loose with both basic fiduciary duty principles and the Rules of Professional Conduct. For the most part, this was unnecessary: The Court could have reached its result in a much simpler way.
Importance of the Facts
To understand my concerns, we have to start with the facts. The plaintiff, Keith Stock (Stock), retained defendant M. Christine Carty (Carty), a member of Schnader, Harrison, Segal & Lewis LLP (Schnader), to represent him in negotiating a severance agreement with his former employer, MasterCard International (MasterCard). According to the Complaint, both Stock and Carty were unaware that the severance would accelerate the exercise periods of certain stock options. The options expired, costing Stock $5 million.
When Stock learned of this, Schnader advised him to commence a court case against MasterCard and an arbitration against the administrator of the stock option plan in an effort to either reinstate the options or collect damages. As the arbitration hearing approached, the administrator sought to call Carty as a witness. Carty and the two Schnader attorneys handling the arbitrator sought legal advice from Schnader’s in-house General Counsel, Wilbur Kipnes (Kipnes), apparently about their obligations under N.Y. Rule of Professional Conduct (RPC) 3.7, the “advocate-witness” rule. This resulted in the exchange of “about two dozen” emails (Kipnes Emails). The record indicates that Kipnes did not charge Stock for his time on this consultation; less clear is whether Carty and the other Schnader lawyers did.
Stock lost the arbitration and settled with MasterCard. With his losses still not recouped, Stock then sued Schnader and some of its attorneys, including Carty, for legal malpractice (among other claims). In response to discovery demands, Schnader listed the Kipnes Emails on its privilege log. Stock sought to compel their disclosure, claiming that Schnader could not invoke the attorney-client privilege to shield the Kipnes Emails from its own client.
Before going further, it is important to focus on what the Kipnes Emails were — or, more specifically, what they were not. They were not created after a dispute had broken out between Stock and Schnader; they were created while Schnader still represented Stock. They were not created to provide Schnader with advice on a potential malpractice claim; they were created to advise Schnader attorneys on their ethical obligations. They were not created in the context of an obvious conflict between Schnader and Stock. To the contrary, Stock and Schnader’s interests at the time were completely parallel, as neither wanted Schnader disqualified because of the attorney-witness rule on the eve of the arbitration hearing.
In this way, Stock was very different from two earlier cases that had adopted the law firm in-house privilege, St. Simons and RFF. In those cases, the prior clients had already threatened or asserted malpractice claims against the law firms when the communications with in-house counsel took place. Thus, the differing interests between the client and the law firm had crystallized, and the need for the firm to consult with counsel to protect itself was clear. This was not true in Stock, where the communications took place while the firm and the client’s interests were (at least arguably) still congruent, and before any overt claim of malpractice. (If there had been such a threat, Schnader could not have continued representing Stock in the arbitration without a conflict waiver. Neither the trial court nor the First Department indicated that Schnader requested or obtained such a waiver.)
Flawed Analysis of the ‘Fiduciary Exception’
In seeking to obtain the Kipnes Emails, Stock relied on two principal arguments to circumvent the attorney-client privilege: (i) the “fiduciary exception” to the attorney-client privilege; and (b) the “current client” rule. The First Department, in rejecting both, undertook a detailed legal analysis. That analysis, however, raises more questions than it answers.
I will start, as the First Department did, with the fiduciary exception to the attorney client privilege. According to the U.S. Supreme Court, “[t]he rule [is] that when a trustee obtained legal advice to guide the administration of the trust, and not for the trustee’s own defense in litigation, the beneficiaries were entitled to the production of documents related to that advice. [The attorney-client privilege does not apply here] because the advice was sought for the beneficiaries’ benefit and was obtained at the beneficiaries’ expense by using trust funds to pay the attorney’s fees.” United Sates v. Jicarilla Apache Nation, 564 U.S 162, 170–71 (2011) (Apache Nation).
The First Department began its analysis of the fiduciary exception by focusing on the seminal New York case on the subject, Hoopes v. Carotta, 142 A.D.2d 906 (3rd Dept. 1988), aff’d, 74 N.Y.2d 716 (1989) (Hoopes). That case involved a successful effort by trust beneficiaries/shareholders to obtain communications a trustee/corporate officer had had with his attorneys about his day-to-day work for the trust (during which he allegedly engaged in various forms of self-dealing). Adopting the case-by-case factual analysis required by another well-known fiduciary exception case, Garner v. Wolfinbarger, 430 F.2d 1093, 1104 (5th Cir. 1970), cert. den. 401 U.S. 974 (1971), the Hoopes court said the privilege did not apply because evidence “suggests that counsel acted on behalf of defendant both in his role as trustee and as the chief executive officer of the corporation,” and thus the communications sought “related to prospective actions by defendant [in connection with his work for the trust], not advice on past actions.” 142 A.D.2d at 910 (emphasis added). This information, the court held, belonged to the beneficiaries and the officer/trustees could not invoke the privilege to shield it from them. The Stock Court contrasted that with Beck v. Manufacturers Hanover Trust Co. 218 A.D.2d 1, 17–18 (1st Dept. 1995), in which the First Department refused to apply the fiduciary exception to communications between a trustee and its lawyers because “plaintiff [beneficiaries] have been in an adversary relation with the Trustee since the late 1970s and the disclosure plaintiffs apparently seek … [is] specifically relevant to the handling of the very issues the plaintiffs have been threatening to litigate.” (Emphasis added.)
In Stock, then, the First Department set up a dichotomy between a situation where the fiduciary consulted lawyers on ongoing trust business (no privilege applies) and where the fiduciary consulted lawyers when already in an adversary situation with the beneficiaries (the privilege does apply). This dichotomy, however, turned out to be not as stark as orignally suggested: The First Department went on to find that even though the Schnader attorneys were still litigating Stock’s case, and no clear adversity existed between attorneys and client, the fiduciary exception still did not apply. The attorneys, said the Court, “had their own reasons, apart from any duty owed to plaintiff, for seeking the legal guidance,” as they faced potential discipline if they did not follow the rules, and the firm had its own interest that they comport with ethical obligations. Stock, 35 N.Y.S.3d at 39.
This decision all but ignored the First Department’s own decision late last year in NAMA Holdings, LLC v. Greenberg, Traurig LLP, 133 A.D.3d 46, 56 (1st Dept. 2015), in which it had cited Garner to require a “communication-specific adversity inquiry” based on a multi-factor test, following an in camera review of all possibly privileged documents, before determining whether the fiduciary exception applies. The NAMA Holdings court held that “communications that are germane to the allegations of the Complaint, even those that occurred after adversity arose, would still be discoverable pursuant to the fiduciary exception (provided good cause exists)” — unless the documents themselves “objectively demonstrate an adverse relationship between the shareholder plaintiff and corporate management.” Id. at 58–59.
In Stock, the Court eschewed such a specific inquiry, saying that it was unnecessary given the small number of emails involved and the limited context for which Kipnes’s advice was sought. Stock, 35 N.Y.S.3d at 42 n.12. More importantly, the Court determined that the fiduciary exception did not apply merely because the fiduciaries seeking the advice — Carty and her colleagues — had some possible personal reason to seek legal advice. Stock, 35 N.Y.S.3d at 39. Given the Schnader attorneys’ arguably dual reasons for consulting counsel — to protect Stock as well as themselves — this reasoning is hardly satisfactory. And it is especially unsatisfactory because the Court failed to address the key factor in any fiduciary exception inquiry: whether the beneficiary/client had become adverse to the trustee/lawyer, and whether the beneficiary/client knew it. That question was very much in doubt when the Kipnes Emails were written.
The Stock opinion is strangely silent on the subject, never making clear, for example, whether Stock had yet threatened to sue Schnader Harrison. As noted above, it is hard to imagine that had occurred, given that Schnader Harrison continued to represent Stock and the opinion does not mention a conflict waiver.
Who Is the ‘Real Client’?
The Stock court’s failure to conduct an adversity inquiry makes more glaring its reliance on another key case, the Delaware Chancery Court’s ruling 40 years ago in Riggs Nat’l Bank of Washington v. Zimmer, 355 A.2d 709 (Del. Chanc. Ct. 1976). The Riggs court adopted the fiduciary exception to allow disclosure of allegedly privileged documents, holding that the documents in question were prepared for the trust beneficiaries’ benefit:
“As a representative of the beneficiaries of the trust which he is administering, the trustee is not the real client in the sense that he is personally being served. And the beneficiaries are not simply incidental beneficiaries who chance to gain from the professional services rendered. The very intention of the communication is to aid the beneficiaries.” Id. at 713–14 (emphasis added).
Calling Riggs “’the leading American case on the fiduciary exception’” [Stock, 35 N.Y.S.3d at 36, citing Apache Nation, 564 U.S. at 171], the First Department took the “real client” concept and ran with it — notwithstanding that Stock, in stark contrast to Riggs, involved lawyers asserting the privilege to withhold communications they had solely to protect themselves while still representing Stock. The First Department went so far as to conclude that “because the purpose of the consultation with Kipnes — for whose time … [Stock] was not billed was to ensure that the attorneys and the firm understood and adhered to their ethical obligations as legal professionals, the attorneys and the firm, not plaintiff, were the ‘real clients’ in this consultation.’” Stock, 35 N.Y.S.3d at 40 (emphasis added.)
This must have come as a surprise to Stock (who was, after all, being represented by the firm in an ongoing arbitration), as it should to any ethically-aware lawyer. When a law firm represents a client, all its lawyers — not just the ones handling the case — have a duty of loyalty to that client. Rule 1.10(a) of the New York Rules of Professional Conduct (RPCs) make this clear, imputing the conflict of any one lawyer in the firm to all the lawyers in the firm. As a matter of logic, fiduciary law, and the RPCs, the law firm’s “real client” at the relevant time was Stock. Kipnes could not, alone among Schnader’s attorneys, claim not to be covered by the imputation rule (1.10) and set himself up as solely Carty and her colleagues’ lawyer.
Significantly, the First Department borrowed this “real party in interest” analysis from RFF and St. Simons. See Stock Slip Op. at *7–9. But as noted, in both those cases there already was explicit adversity between the lawyers and the clients. RFF, 465 Mass. at 704 (client’s lawyer sent “notice of claim” to law firm while law firm was still representing client); St. Simons, 293 Ga. 419 at 420 (client was publicly blaming lawyers for mistake). No such adversity existed in Stock.
The First Department claims that, despite the ongoing representation, any benefit Stock would have received from Kipnes’ consultation “would have been indirect and incidental;” after all, the Court reasoned, if Kipnes had determined that Carty’s role as witness put the firm in violation of Rule 3.7, he would have hurt Stock by advising the firm to withdraw. Stock, 35 N.Y.S.3d at 40. But in fact, Kipnes determined that the Rule was not being violated and Schnader did not have to withdraw. His advice was congruent with Stock’s interests and directly benefitted him at the time. Moreover, as noted earlier, while the Court is very careful to note that Kipnes did not charge Stock for his time during the consultation, it says nothing about whether Carty and her colleagues did. If they did, it would strongly suggest that Stock’s interests were those really being served.
In sum, the Stock Court’s “fiduciary exception” analysis eschewed the Garner multi-factor test as well as the communication-specific adversity inquiry required by NAMA Holdings. Indeed, it came close to doing away with any adversity requirement at all, as long as the lawyers had their own ethical responsibilities to consider. As we will show, this is where the Stock Court actually got it right — and could have entirely avoided its tortured analysis of the fiduciary exception.
Current Client Exception
Before explaining our last comment, we must describe Stock’s second argument to overcome the privilege: the “current client exception” to the attorney-client privilege. Stock, 35 N.Y.S.3d at 42. As the Court explained, “[a]pplicable specifically to attorneys (as opposed to fiduciaries in general), the current client exception holds that a law firm cannot invoke the attorney-client privilege to withhold from a client evidence of any internal communications within the firm relating to the client’s representation, including consultations with the firm’s in-house counsel, that occurred while the representation was ongoing.” Id., citing, e.g., Bank Brussels Lambert v. Credit Lyonnais [Suisse] S.A., 220 F. Supp. 2d 283 (S.D.N.Y. 2002) and In re Sunshine Sec. Litig, 130 F.R.D. 560 (E.D. Pa. 2002). According to the Court, the rationale behind this “appears to be that the law firm in-house counsel’s advice to the other firm attorneys, on a matter as to which the firm’s interests and those of a current outside client are not congruent, involves the firm in an impermissible simultaneous representation of conflicting interests.” Id. This, in turn, is based on the imputation rule of RPC 1.10 — a rule which finally surfaced in this part of the Court’s opinion, and which the Court attempted to discount.
Once again, the Stock Court’s analysis was a little off-base. The Court relied on RFF, which in turn had relied on a scholarly article (since there was no favorable case law) that focused on “the construction of the term ‘a client’ in RPC rule 1.10(a).” Stock, 35 N.Y.S.3d at 45, citing RFF, 465 Mass. at 719–21, citing E. Chambliss, The Scope of the In-Firm Privilege, 80 Notre Dame L. Rev. 1721, 1745–48 (2005). In essence, the Court stated that the imputation rule is intended to “‘prohibit a law firm from representing two clients who are adverse to each other. A law firm can avoid that conflict by refusing to represent an adverse outside client. But where a law firm is already representing a client and that client threatens to bring a claim against the law firm, the potential conflict between the law firm’s loyalty to the client and its loyalty to itself cannot be avoided and must instead be addressed. … Applying the rule of imputation in such circumstances therefore would not avoid conflicting loyalties or prevent disloyalty; it would simply prevent or delay a law firm from seeking the expertise and advice of in-house counsel in deciding what to do where there is a potential conflict.’” Id. at 45–46 (citations omitted) (emphasis added).
This logic is flawed for several reasons. First, this analysis harkens back to the “real client” discussion in Riggs — an analysis which, as we have shown, the imputation rule directly refutes. Second, to the extent a client’s complaint creates a personal interest conflict for lawyers at the firm under RPC 1.7 (finding a conflict where there is “a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s own financial, business, property or other personal interests”), that conflict is still imputed to all lawyers at the firm under RPC 1.10(a); New York, unlike the ABA Model Rules of Professional Conduct (MRs), does not make an exception for imputation of such conflicts. Compare RPC 1.10(a) with MR 1.10(a)(1) (exempting personal interest conflicts from imputation rule). In many situations — for example, all of a firm’s partners conflicted out of representing a known polluter because one of the partners is a Board member of the Sierra Club — that creates results far more absurd than what the Stock Court posited here, where the law firm could be acting adversely to the current client without the client even being aware of the problem. Third, if expediency for the law firm governed conflicts law, we would have a broad screening rule in New York, allowing lawyers to avoid conflicts simply by establishing “ethical walls” — whether the client likes it or not. Though the Model Rules permit such screening, New York has never adopted it. Compare MR 1.10(b) with N.Y. RPC 1.10(a). Conflicts rules are intended to protect clients from disloyalty, not to make lawyers’ jobs easier or support the role of in-house counsel.
But the answer to the “current client” exception — and indeed to the fiduciary exception — can be found in something much more fundamental: the client’s expectation when it hires a professional governed by a set of ethical rules. The client must be deemed to expect that the lawyer will act consistently with his or her ethical obligations, whether doing so comports with the client’s interests or not. As the Stock Court put it:
“The protection afforded by the attorney-client privilege encourages lawyers to seek advice concerning their ethical responsibilities and potential liabilities in a timely manner so as to minimize any damage to the client from any conflict or error. Much of this benefit — to both lawyers and clients — would be lost if the attorney-client privilege could be invoked by a lawyer who sought legal advice to protect his or her own interests only for consultations that took place after the lawyer or the client had openly taken a position adverse to each other.” Stock, 35 N.Y.S.3d at 40.
It then quoted RFF to point out that “’[s]oliciting … advice [concerning a conflict], whether from an in-house counsel at the law firm or from an attorney at another law firm, is not in and of itself adverse to the client, and doing so ultimately may benefit the client. Ultimately, it is usually in the interests both of the attorney seeking advice of the client that the ethical issues be examined by a competent advisor who has been fully informed of all relevant facts, with none withheld out of fear that the consultation may not remain private.’” Id., citing RFF, 465 Mass. at 711.
In other words, when hiring a lawyer, the client understands it is getting the entire package that comes with a professional who must abide by ethical rules. To that extent, the client should have no expectation that it would have access to its lawyer’s communications with an attorney designed to comport with those rules, whether that attorney is an outside lawyer or an in-house lawyer. Nor should the client have any expectation that the lawyer’s duties to the client will trump the lawyer’s obligations to comply with ethical obligations. In this way, as the Stock court itself found, both the “fiduciary exception” and the “current client exception” fall by the wayside. See id. at 40–41 (“fiduciary exception” does not apply because lawyers’ need to seek advice to comply with their ethical obligations trumps client’s right to obtain those communications) and 44–45 (“current client exception” does not apply because “’a law firm’s consideration of its own legal and ethical obligations in connection with its representation of one or more clients cannot be said to implicate a differing interest that will adversely affect the lawyer’s exercise of professional judgment nor the loyalty due a client within the meaning of the [Rules]”), citing NYSBA Op. 789 (2005).
In this way, the Court’s opinion comported with Upjohn Co. v. U.S., 449 U.S. 383 (1981), where the U.S. Supreme Court established a sweeping corporate attorney-client privilege. The Supreme Court’s analysis was very pragmatic, and focused on the needs of the corporation (“Information, not available from upper-echelon management, was needed to supply a basis for legal advice concerning compliance with securities and tax laws, foreign laws, currency regulations, duties to shareholders, and potential litigation. …”), the expectations of those receiving the advice (“the employees themselves were sufficiently aware they were being questioned in order that the corporation could obtain legal advice”) and the public importance of ensuring corporate compliance with the law.
The Stock Court did not have to dig any deeper than the Supreme Court did to reach its result. And that result is certainly the right one: as Stock also points out, it encourages lawyers to seek the advice they need more quickly from an in-house lawyer, rather than going through the cumbersome process of locating and hiring outside counsel each time an ethical problem arises. Stock, 35 N.Y.S.3d at 45–46. By making a bright-line, broad rule assuring confidentiality, the Court encouraged lawyers to be candid with their firm’s General Counsel, and therefore ensured they would obtain advice swiftly and efficiently — a benefit to both the lawyers and their clients.
But the Stock Court did go further, eschewing the “good cause” analysis required under Garner, introducing the dangerous concept of the “real client”, and providing its novel interpretation of the imputation rule. As a result, the First Department sowed more confusion than it needed to in order to reach the correct result. While we understand that Stock will not be further appealed, we hope that, when the Court of Appeals finally gets around to addressing this issue, it will take a simpler, more practical approach.
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