Are Retainer Agreements Privileged New York
Necessary response: Must object and refuse to answer (because disclosure is privileged and because the lawyer is required to use the privilege on behalf of the client and the legal counsel is required not to disclose the trust of the clients). Where a lawyer jointly represents two parties with common interests, communication between counsel and one party in relation to the other is not privileged. [Federated Associates v. Howard Johnson Co., Inc., 102 AD2d 841, 476 NYS2d 636 (2d Dept 1984).] However, to determine whether the client`s name and address are preferred, it is necessary to conduct a case-by-case analysis. The identity of a client and non-evidence may be privileged if disclosure may be inappropriate because it is inconsistent with the trust and obligation of a lawyer. Therefore, if there is a legitimate purpose for confidential communication between the lawyer and the client, even the client`s identity may be privileged. [Matter of Jacqueline F., 47 NY2d 215, 221, 417 NYS2d 884 (1979); and see Matter of D`Alessio , 205 AD2d 8, 617 NYS2d 484 (2d Dept 1994) (lawyer is not required to reveal the name of the client, a suspect in a «hit and run» case if the client intends to identify himself). Answer required: Must answer the question (since the fact is not privileged). The lawyer`s work product is created on materials created by the lawyer with respect to litigation – real or contemplated. Therefore, early contract projects or any other material that has been created for a transaction, even if only the product of a lawyer`s skills and learning, are not privileged. Therefore, if the intent of the contracting parties can be developed on the basis of projects by tracing the history of the negotiations, a party cannot refuse to submit those projects. Some transaction lawyers practice the elimination of projects earlier once an agreement has been reached. It`s a double-edged sword, of course.
This prevents an opponent from discovering and relying on them. It also prevents the customer from suspecting it. And it is often difficult to know in advance what a future quarrel can be. Solicitor-client privilege is absolute. This means that, regardless of the relevance of the disclosure or the need of the other party for the evidence, unless the privilege has been quashed, the privileged communication between a lawyer and that client of that lawyer cannot be disclosed by counsel, and should not be disclosed by the client. Privilege «cannot, however, be invoked in the case of customer messages that may be the result of a fraudulent system, an alleged breach of trust duty, or a charge of other unlawful conduct.» [Ulico Casualty Company v. Wilson, Elser, Moskowitz, Edelman and Dicker, 1 AD3d 223, 767 NYS2d 228 (1st Dept 2003).] However, a communication that is a mixture of privileged and non-privileged information does not destroy immunity for privileged communication. Therefore, if a bank kept a law firm to conduct an internal investigation into possible fraud by its own staff in its dealings with sellers, the law firm`s subsequent report remained privileged, although it contained a mixture of legal and business advice.