Key Takeaway: Under New York law, the attorney-client privilege applies to advice from counsel regarding general legal subjects, even when unsolicited and there is no anticipated litigation or pending action.
Litigators across the country are accustomed to addressing attorney-client communications in review protocols as only those communications that seek and provide legal advice from counsel. But what if that communication is unsolicited legal analysis of an issue that isn’t directly related to an anticipated or pending dispute? Can that communication be fairly withheld on the basis of attorney-client privilege? According to New York state’s highest court, the Court of Appeals, the answer is unequivocally “yes.”
In Matter of App. Advocs. v. New York State Dep’t of Corr. & Cmty. Supervision, petitioner Appellate Advocates filed a Freedom of Information Law request with respondent Department of Corrections and Community Supervision (DOCCS) for materials related to the Board of Parole’s decision-making process. DOCCS disclosed thousands of pages but withheld, on the basis of attorney-client privilege, certain documents that were prepared for internal compliance and training purposes.
The court reasoned that even where the documents at issue are DOCCS employee training materials, they nevertheless
contain counsel’s advice regarding compliance with legal requirements[.] The documents summarize recent court decisions and advise on how to apply statutes, regulations, and case law to parole determinations. The documents also include guidance on drafting parole decisions that accord with the law. In sum, the documents reflect counsel’s legal analysis of statutory, regulatory and decisional law, and provide guidance for the commissioners on how to exercise their discretionary authority. Therefore, the documents are privileged[.]
The petitioner argued that the withheld materials were not subject to the privilege because they contained generalized advice that was not connected to any legal dispute. In other words, the petitioner argued the privilege applies “only to communications responding to an existing ‘real world factual situation.’” The Court of Appeals rejected the petitioner’s narrow view of the privilege: It made clear that the court never took the position that the privilege protects only those communications made in anticipation of or during a pending action. Why? Because the court reasoned that as a matter of policy, the attorney-client privilege should incentivize practitioners and legal advisers to take a proactive approach to compliance and avoidance of disputes: “Encouraging proactive compliance with the law has patent benefits.”
The court further clarified that the advice provided by counsel need not be in response to a direct request from the client. Rather, attorneys should help their clients navigate the legal landscape. “In so doing, counsel relies on their professional judgment, experience, skill, and knowledge of the law to assess the client’s potential needs and possible risk exposure” before their client even asks a question.
Our advice: When assessing attorney-client privilege under New York law, keep in mind that the legal advice may be unsolicited and need not have been provided in anticipation of litigation. In the context of discovery, it would be prudent to amend your review protocols accordingly to capture such privileged information and shield it from disclosure.