Showing 49 of 49 results

Chapter: 3.2

Case Name: Loop AI Labs Inc. v. Gatti, Case No. 15-cv-00798-HSG (DMR), 2017 U.S. Dist. LEXIS 4254 (N.D. Cal. Jan. 11, 2017)
(finding that a firm represented an Italian company and its subsidiary, even if there was no retainer agreement; "Plaintiff argues that Almawave never established a privileged relationship with Orrick, lacked the ability to assert privilege on behalf of Almaviva S.p.A. and Almawave S.r.l., and therefore did not have standing to move to quash the Orrick subpoena. This argument is without merit. Almawave submitted the declaration of Valeria Sandei, the Chairman and President of Almawave USA and CEO of Almawave S.r.l., in which she stated that Almawave S.r.l. formally engaged Orrick to assist in setting up a United States subsidiary. . . . After the establishment of Almawave USA, Sandei states that 'Orrick served as counsel to both Almawave S.r.l. as well as to Almawave USA, providing legal advice to each company.'. . . Given this undisputed evidence, Almawave could reasonably have believed that Orrick was acting as its attorney during the relevant period, even if Orrick was never formally retained to represent that entity.")

Case Date Jurisidction State Cite Checked
2017-01-11 Federal CA

Chapter: 3.2

Case Name: Rao v. The Bd. of Trustees of the Univ. of Ill., No. 14-cv-0066, 2016 U.S. Dist. LEXIS 145298 (N.D. Ill. Oct. 20, 2016)
(holding that plaintiff's wife did not share a common interest with her husband, and was not within the privilege protection as her husband's agent, and had admitted that lawyer/children were not acting as her lawyer during the communications; inexplicably not addressing work product protection; "Ms. Jasti's testimony at her deposition was very clear that she was not represented by either her children or Mr. Rock, and that her communications with her children were made in the context of their familial relationship, not an attorney-client relationship."; "In an attempt to combat Ms. Jasti's damaging deposition testimony on this issue, Plaintiff has attached a statement from Ms. Jasti to his filing, claiming that her children 'have both been advising us, as our attorneys, throughout the litigation,' and that she played an important role for Plaintiff in his communications with Mr. Rock. . . . The Court is not persuaded by this attempt to provide an ex post facto reversal of Ms. Jasti's clear deposition testimony regarding the nature of her relationship with her children and Mr. Rock as it relates to this case. Plaintiff provided no evidence of an attorney-client relationship between Ms. Jasti and her children or Mr. Rock, other than the assertion contained in her statement; there is no engagement letter or any other indicia of an attorney-client relationship that one would expect. In short, Plaintiff has not met his burden of proving an attorney-client relationship between Ms. Jasti and her children or Mr. Rock. Therefore, any statements made by Ms. Jasti to those individuals were not in the context of an attorney-client relationship, and are not privileged.")

Case Date Jurisidction State Cite Checked
2016-10-20 Federal IL

Chapter: 3.2

Case Name: Torres v. Whitaker Chalk Swindle & Schwartz, PLLC, No. 03-15-00706-CV, 2016 Tex. App. LEXIS 6300 (Tex. App. 3d June 15, 2016)
(finding that a business's co-owner could not pursue a derivative case against a law firm which he alleged represented the company; concluding that the law firm had not represented the company; "The parties concur that the existence of a duty owing by appellees to CRU with respect to either liability theory turns entirely on whether there existed an attorney-client relationship between CRU and appellees. The attorney-client relationship is contractual in nature -- an attorney and client mutually agree that the attorney will render professional services for the client. While such an agreement need not necessarily be express and may sometimes be implied from the objective manifestations of the parties' conduct, in either case 'there must be evidence both parties intended to create an attorney-client relationship.' In support of their summary-judgment motion, appellees presented evidence that they had once represented Krueger pursuant to an explicit engagement letter, but had never represented CRU -- and that, in fact, much of their representation of Krueger had been adverse to CRU. In response, in an attempt to raise a fact issue, Torres relied solely on what he viewed as proof of an implied attorney-client relationship between appellees and CRU -- emails and other communications between appellees and Krueger between May 31, 2013, the date of a shareholder meeting at which Krueger purportedly wrested control of CRU from Torres, and early July 2013, when appellees and Krueger parted ways. The gist of Torres's reasoning is that these communications objectively manifested the relationship's evolution from representation of Krueger alone to representation also of the corporation Krueger had come to control. We disagree that this evidence, without more, is sufficient to raise a fact issue as to whether CRU and appellees agreed to enter into an attorney-client relationship, as opposed to representing conduct merely consistent with appellees' representation of Krueger. Consequently, the district court did not err in granting appellees' summary judgment on their no-duty ground.")

Case Date Jurisidction State Cite Checked
2016-06-15 Federal TX

Chapter: 3.2

Case Name: Torres v. Whitaker Chalk Swindle & Schwartz, PLLC, No. 03-15-00706-CV, 2016 Tex. App. LEXIS 6300 (Tex. App. 3d June 15, 2016)
(finding that a business's co-owner could not pursue a derivative case against a law firm which he alleged represented the company; concluding that the law firm had not represented the company; "The parties concur that the existence of a duty owing by appellees to CRU with respect to either liability theory turns entirely on whether there existed an attorney-client relationship between CRU and appellees. The attorney-client relationship is contractual in nature -- an attorney and client mutually agree that the attorney will render professional services for the client. While such an agreement need not necessarily be express and may sometimes be implied from the objective manifestations of the parties' conduct, in either case 'there must be evidence both parties intended to create an attorney-client relationship.' In support of their summary-judgment motion, appellees presented evidence that they had once represented Krueger pursuant to an explicit engagement letter, but had never represented CRU -- and that, in fact, much of their representation of Krueger had been adverse to CRU. In response, in an attempt to raise a fact issue, Torres relied solely on what he viewed as proof of an implied attorney-client relationship between appellees and CRU -- emails and other communications between appellees and Krueger between May 31, 2013, the date of a shareholder meeting at which Krueger purportedly wrested control of CRU from Torres, and early July 2013, when appellees and Krueger parted ways. The gist of Torres's reasoning is that these communications objectively manifested the relationship's evolution from representation of Krueger alone to representation also of the corporation Krueger had come to control. We disagree that this evidence, without more, is sufficient to raise a fact issue as to whether CRU and appellees agreed to enter into an attorney-client relationship, as opposed to representing conduct merely consistent with appellees' representation of Krueger. Consequently, the district court did not err in granting appellees' summary judgment on their no-duty ground.")

Case Date Jurisidction State Cite Checked
2016-06-15 State TX

Chapter: 3.2

Case Name: Medline Indus., Inc. v. C.R. Bard, Inc., No. 14 CV 3618, 2016 U.S. Dist. LEXIS 9767, at *15-16, *16-17, *20-21 (N.D. Ill. Jan. 26, 2016)
(holding that the privilege protected an employee inventor's draft affidavit even though the final version was filed; also holding that a non-employee's draft affidavit was not protected by the privilege despite that person's claim that the lawyer also represented him; "[T]he court finds that Medline must disclose the drafts of Lyon's [non-employee fact witness] declaration. Bard argues that Lyon, unlike Tomes, was not Medline's employee and did not have an attorney-client relationship with Attorney Burrus. . . . In response, Medline makes two arguments to support its assertion of privilege over the Lyon drafts: (1) Lyon had an implied attorney-client relationship with Burrus because Lyon reasonably believed Burrus was acting as his attorney in preparing and submitting his declaration; and (2) drafts of Lyon's declaration were 'part of a series of communications' between him and Burrus 'for the purpose of assessing patentability,' and are therefore privileged. . . . Both of Medline's arguments fall short. First, Medline submits a declaration from Lyon stating that he 'understood Mr. Burrus to be acting as [his] attorney' for purposes of preparing his declaration for submission to the USPTO. . . . But to establish an implied attorney-client relationship, a party must show more than just his 'mere subjective belief that he [was] represented' to demonstrate such a relationship existed for the purpose of attorney-client privilege."; "Here, while Lyon may have believed Burrus was his lawyer, his belief was not reasonable. . . . Not only was Lyon not an employee, Medline has not submitted evidence that Burrus was advising Lyon on an individual basis and keeping information shared between them confidential. In fact, although Lyon states that he kept their communications confidential, there is no evidence that Burrus did not share the declaration drafts or discuss their contents with Medline. . . . In the absence of other clear indicators of an attorney-client relationship, an affidavit from Burrus explaining that he served as Lyon's attorney could have helped Medline meet its burden of proving that the privilege applies here, but Medline did not submit such an affidavit."; "It is true that Lyon's declaration supported Medline's patent application, but he was not assisting Burrus in his rendering of legal services in the same way that accountants, interpreters, or polygraph examiners traditionally assist attorneys in providing legal services.")

Case Date Jurisidction State Cite Checked
2016-01-26 Federal IL B 7/16
Comment:

key case


Chapter: 3.2

Case Name: Gebremedhin v. American Family Mutual Insurance Company, Civ. A. No. 1:13-cv-02813-CMA-NYW, 2015 U.S. Dist. LEXIS 91948 (D. Colo. July 15, 2015)
("Colorado law provides that 'an attorney retained by the insurance carrier owes a duty to the insured only; there is no attorney-client relationship between an insurance carrier and the attorney it hires to represent the insured.'")

Case Date Jurisidction State Cite Checked
2015-07-15 Federal CO

Chapter: 3.2

Case Name: Stradtman v. Republic Services, Inc., 1:14cv1289 (JCC/JFA), 2015 U.S. Dist. LEXIS 66635 (E.D. Va. May 21, 2015)
("The person seeking to invoke the attorney-client privilege must prove that he is a client or that he affirmatively sought to become a client. . . . 'The professional relationship . . . Hinges upon the client's belief that he is consulting a lawyer in that capacity and his manifested intention to seek professional legal advice.'. . . An individual's subjective belief that he is represented is not sufficient to create an attorney-client relationship.")

Case Date Jurisidction State Cite Checked
2015-05-21 Federal VA

Chapter: 3.2

Case Name: Stradtman v. Republic Services, Inc., 1:14cv1289 (JCC/JFA), 2015 U.S. Dist. LEXIS 66635 (E.D. Va. May 21, 2015)
("Though the retainer agreement was signed by a representative of Charlson Bredehoft on April 16, 2012 and by Stradtman on July 23, 2012, it is possible that an attorney-client relationship existed before July 23, 2012. . . . Here, both Stradtman and Charlson Bredehoft manifested an intent to form an attorney-client relationship through their actions -- Stradtman in discussing legal strategy and Charlson Bredehoft in signing a retainer agreement and providing the same to Stradtman."; "'Judge Anderson's determination is not undermined by the lack of a declaration from Stradtman, in opposition to the motion to compel, detailing when he entered into an attorney-client relationship. Though a declaration would have made resolution of this issue much simpler, its absence is not dispositive on the question of intent to form an attorney-client relationship.'")

Case Date Jurisidction State Cite Checked
2015-05-21 Federal VA

Chapter: 3.2

Case Name: Alliance Industries Ltd. v. A-1 Specialized Svcs. & Supplies, Inc., Civ. A. No. 13-2510, 2015 U.S. Dist. LEXIS 45983 (E.D. Pa. April 8, 2015)
(analyzing privilege issues in connection with two closely held corporations owned by two brothers in varying percentages; ultimately finding that neither of the brothers expected confidentiality, so that the law firms representing the various corporations had to provide access to their communications to both brothers; "There is conflicting evidence regarding whether Mr. Massias, Mr. Dange, or Mr. Bullock represented A-1 at the material times in this dispute or only represented Suresh and Kumar in their personal capacities. Although Mr. Massias and Mr. Bullock explicitly deny representing A-1, the Court must examine the evidence in the record and cannot simply rely on an attorney's statement."; "[F]airness requires that each one be able to call upon the recollection of their counsel in terms of developing testimony of the relevant facts for use in dispositive motions and/or at trial. . . . Although it is true, as Plaintiffs point out, that Kumar and Suresh are not parties to this litigation, this case involves closely held companies that Kumar and Suresh control. . . . There is ample evidence in the record that Suresh and Kumar were not scrupulous about respecting corporate formalities, including emails sent to counsel from corporate email accounts, the fact that A-1 paid Mr. Massias's legal bill, testimony that A-1 reimbursed Kumar for his payment of Mr. Dange's legal expenses, and the involvement of A-1's accountant and other A-1 employees in communications with the lawyers."; "Even if the Court were to accept at face value Plaintiffs' contention that the lawyers only represented Suresh and Kumar in their personal capacities and did not represent A-1, it is obvious from the documents that both Kumar and Suresh shared their communications with the lawyers with others, including Ms. Jerath, the accountant for A-1, Suresh, and Kumar, Leena, Suresh's wife and a 5 percent owner of A-1, and Sameer, Kumar's son, whose role is unclear. This sharing of communications with third parties indicates a lack of effort by both Kumar and Suresh to keep the communications with their attorneys confidential."; "In this case, there are numerous instances in which communications with attorneys were shared or disclosed among a broader group of people. The Court is not necessarily being critical in this regard, but merely stating a fact, which leads to a conclusion that the clients did not intend these communications to be confidential and, therefore, that no attorney-client privilege attached to those communications."; "The factual record resembles, not physically but conceptually, a large house where Kumar and Suresh both live and chatter with the three lawyers, and the others mentioned above, on the stairs and in the hallways, about corporate ownership and control, with smatterings of legal advice occurring from time to time. This scenario does not preserve the attorney-client privilege, and plaintiffs cite no case supporting their arguments."; "The conflicting evidence as to who Mr. Massias, Mr. Bullock, and Mr. Dange were representing and when, the evidence that Suresh and Kumar shared their attorney communications with third parties, the breakdown in the relationship between these two brothers, this subsequent litigation between the closely held corporations they control, and the possibility that the lawyers have knowledge of relevant facts obtained outside of confidential client communications, lead the Court the conclude that Plaintiffs have not met their burden of showing the attorney-client privilege applies at this time.")

Case Date Jurisidction State Cite Checked
2015-04-08 Federal PA

Chapter: 3.2

Case Name: Federal Housing Finance Agency v. Nomura Holding America, Inc., 11cv6201 (DLC), 2015 U.S. Dist. LEXIS 26811 (S.D.N.Y. March 4, 2015)
(analyzing a situation in which the defendant's lawyer Sullivan & Cromwell began to represent four appraisers; finding that the lawyers' communications with the appraisers after the representation began deserved privilege protection; "On January 26, 2015, defendants listed four appraisers as trial witnesses. Affidavits constituting their direct testimony were submitted on February 20 with the Pretrial Order. On March 2, after the Court granted FHFA's request to depose the appraisers, defendants advised that Nomura's counsel, Sullivan & Cromwell LLP, had been engaged that same day to represent the four appraisers. Defendants represent that none of the appraisers had previously been represented by counsel."; "FHFA cites no controlling authority, and none has been found, in support of its request for an order directing an adverse party's counsel to provide information sufficient to determine if its representation of a third-party trial witness is a bona fide attorney-client representation."; "[C]ommunications between Nomura's counsel and the appraisers prior to March 2 are not privileged.")

Case Date Jurisidction State Cite Checked
2015-03-04 Federal NY
Comment:

key case


Chapter: 3.2

Case Name: Acme Truck Line, Inc. v. Gardner, Civ. A. H-13-3152, 2014 U.S. Dist. LEXIS 170286 (S.D. Tex. Dec. 9, 2014)
(analyzing privilege issues in a first party insurance context; holding that there was an attorney-client relationship between the lawyer hired by the insurance company to represent the insured; "Texas state law governs whether Acme and Gardner formed an attorney-client relationship. . . . Under Texas law, the attorney-client relationship is a contractual relationship in which an attorney 'agrees' to render professional services for a client. . . . To determine if there was an agreement or meeting of the minds one must use objective standards of what the parties said and did and not look to their subjective states of mind. . . . Therefore, the relevant inquiry for an implied attorney-client relationship is whether the parties' statements and actions objectively demonstrate a manifestation of intent to enter into the relationship. The formation of an attorney-client relationship is generally a question of fact."; "If true, these facts could objectively be construed as consistent with an intention to form an attorney-client relationship.")

Case Date Jurisidction State Cite Checked
2014-12-09 Federal TX

Chapter: 3.2

Case Name: La Suisse, Societe D'Assurances Sur La Vie v. Kraus, 06 Civ. 4404 (CM) (GWG), 2014 U.S. Dist. LEXIS 166673 (S.D.N.Y. Dec. 1, 2014)
(analyzing a lawsuit in which an insurance holder sued Swiss Life, which in turn sued an insurance broker; analyzing communications between plaintiffs' former lawyer Mahon and the broker Kraus; noting that Mahon had not claimed work product protection; "Mahon attempts to justify his assertion of the privilege because of the 'general rule' that 'communications are deemed privileged if they tend to reveal client communications.'. . . But this statement assumes that Kraus was Mahon's 'client,' which Mahon has never claimed. The mere fact that Kraus was communicating with Mahon regarding the litigation, even if he did so on a regular basis, does not by itself establish an attorney-client relationship between Kraus and Mahon.")

Case Date Jurisidction State Cite Checked
2014-12-01 Federal NY

Chapter: 3.2

Case Name: DeYoung v. Beirne, Maynard, & Parsons, L.L.P., No. 01-13-00365-CV, 2014 Tex. App. LEXIS 2965, at *8, *13-14 (Tex. App. Mar. 18, 2014)
("In determining whether an attorney-client relationship can be implied, we examine the conduct of the parties using an objective standard, determining whether the parties' communications or actions manifest that both parties intended to create an attorney-client relationship; we do not consider the parties' unstated, subjective beliefs. . . . A law firm does not have an attorney-client relationship if the purported client neither sought nor obtained legal services from the law firm."; "In contrast to these cases, the DeYoungs have not identified any evidence that William or the law firm undertook any action that led anyone in the real estate partnership to believe that the law firm represented the partnership -- evidence that is necessary to give rise to an affirmative duty to disclaim the existence of an attorney-client relationship.")

Case Date Jurisidction State Cite Checked
2014-03-18 State TX B 9/14

Chapter: 3.2

Case Name: Mendillo v. Prudential Ins. Co. of Am., Civ. No. 3:12CV1383 (WWE), 2014 U.S. Dist. LEXIS 22451, at *12 (D. Conn. Feb. 20, 2014)
("The Court agrees with defendant that communications between Attorney Beebe [plaintiff's lawyer] and third parties are not generally protected by the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2014-02-20 Federal CT B 7/14

Chapter: 3.2

Case Name: In re Marriage of Kurotsuchi, Nos. 1-11-0638 & -2319, 2013 Ill. App. Unpub. LEXIS 377, at *19 (Ill. App. Ct. Mar. 1, 2013)
(not for citation) (analyzing a situation in which a husband obtained access to his wife's email, but did not explain how; ultimately assuming that the husband misappropriated the email; "'The attorney-client relationship is a voluntary, contractual relationship, only created by a retainer, an offer to retain or a fee paid. . . . The contract of retainer may be made like any other contract: it may be express or implied, written or oral. . . . It cannot be created by the attorney alone or by the attorney and a third party without authority to act.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2013-03-01 State IL B 3/14

Chapter: 3.2

Case Name: Snow, Christensen & Martineau v. Lindberg, 299 P.3d 1058, 1061, 1070 (Utah 2013)
(holding that a trust that was reformed cy pres [intention of the party is carried out "as near as may be"] was not a continuing client of the law firm that had represented the trust earlier, and was not entitled to the old trust's privileged documents; "This case requires us to determine whether an attorney-client relationship that existed between the United Effort Plan Trust (UEP Trust or Trust) and its attorneys at the law firm Snow, Christensen & Martineau (SCM) continued after the Trust was reformed cy pres."; "We hold that the UEP and the Reformed Trust were not the same client. Therefore, there was no attorney-client relationship between SCM and the Reformed Trust. As a result, the district court erred when it disqualified SCM from representing Movants and ordered SCM to disgorge privileged attorney-client information to the Special Fiduciary of the Reformed Trust."; "In this case, not only is SCM not required to disgorge privileged attorney-client information related to its representation of the UEP Trust, it is prohibited by rule 1.9(c) from so doing. The Reformed Trust is not the same entity as the UEP Trust and therefore it is not entitled to the UEP Trust's privileged attorney-client information. Requiring the UEP Trust to disgorge privileged information to the Reformed Trust would be contrary to the underlying purpose of the attorney-client privilege in encouraging candor between lawyer and client. It would require the UEP trust to turn over possibly embarrassing or legally damaging material to an entity that it perceives as hostile to the FLDS Church and thus hostile to the very purpose of the UEP Trust.")

Case Date Jurisidction State Cite Checked
2013-01-01 State UT B 7/13

Chapter: 3.2

Case Name: Egiazaryan v. Zalmayev, 290 F.R.D. 421, 429 (S.D.N.Y. 2013)
(analyzing a situation in which a defamation plaintiff's law firm had first worked with and later represented the plaintiff's public relations firm; holding that the PR agency was not within the privilege as the client's agent, and did not have a common interest with the plaintiff client; also holding that the PR agency could not create work product for the non-party, but that disclosing work product to the PR agency did not waive that protection; "We begin by noting that neither these e-mails nor anything in the affidavits submitted to the Court reflect that BGR [public relations agency] retained FZWZ [plaintiff's law firm] to represent it with respect to any subject area other than 'in connection with the subpoenas.'" (internal citation omitted))

Case Date Jurisidction State Cite Checked
2013-01-01 Federal NY B 3/14

Chapter: 3.2

Case Name: Egiazaryan v. Zalmayev, 290 F.R.D. 421, 430 (S.D.N.Y. 2013)
(analyzing a situation in which a defamation plaintiff's law firm had first worked with and later represented the plaintiff's public relations firm; holding that the PR agency was not within the privilege as the client's agent, and did not have a common interest with the plaintiff client; also holding that the PR agency could not create work product for the non-party, but that disclosing work product to the PR agency did not waive that protection; "Although BGR [public relations agency] did not execute a formal retainer agreement with FZWZ [plaintiff's law firm] until September 6, 2011, the communications BGR had with FZWZ beginning on August 21, 2011 -- the content of which is reflected in the withheld e-mails -- were for the purpose of obtaining legal advice on how to respond to the subpoenas.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal NY B 430

Chapter: 3.2

Case Name: Egiazaryan v. Zalmayev, 290 F.R.D. 421, 429 (S.D.N.Y. 2013)
(analyzing a situation in which a defamation plaintiff's law firm had first worked with and later represented the plaintiff's public relations firm; holding that the PR agency was not within the privilege as the client's agent, and did not have a common interest with the plaintiff client; also holding that the PR agency could not create work product for the non-party, but that disclosing work product to the PR agency did not waive that protection; "BGR's [public relations agency] affidavit on the question of when it formed an attorney-client relationship with FZWZ [plaintiff's law firm] is vague.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal NY B 3/14

Chapter: 3.2

Case Name: In re Fundamental Long Term Care, Inc., 489 B.R. 451, 460, 461 (M.D. Fla. 2013)
(holding that a trustee's lawyer may seek files of a firm which also represented debtor's subsidiary and another company, based on the co-client privilege; "The threshold issue to be addressed is whether THMI [current debtor Trans Health Management, Inc.] had an attorney-client relationship with any of the law firms that represented it after it was sold to the Debtor. It is unclear whether the Receiver believes THMI was a client of any of those firms. On the one hand, the Receiver argues in his attorney-client privilege brief that THMI had no attorney-client relationship with any of the law firms after it was sold to the Debtor. That view was also echoed by the Rydberg firm in its filings. On the other hand, the Receiver appeared to concede at a February 12, 2012 hearing that THMI 'technically' was the client of the firms that represented it in the wrongful death cases. In the end, the Receiver really has no choice but to concede THMI was a client of those firms." (footnotes omitted); "To begin with, whether THI [former parent of wholly owned subsidiary THMI, the current debtor] or the Receiver technically retained the law firms or paid their fees is not determinative. The key issue is whether the law firms provided legal services to THMI.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal FL B 3/14 B 3/14

Chapter: 3.2

Case Name: IP Telesis Inc. v. Velocity Networks Inc., No. CV 11 09950 RGK (AJWx), slip op. at 2-3, 3 (C.D. Cal. Nov. 5, 2012)
(dismissing a derivative case against a corporation's lawyer, because the lawyer would be unable to defend itself because the company had not waived its privilege; "Plaintiff contends there was never an attorney-client relationship between Velocity and Defendant BB&L in the underlying transactions because Defendant BB&L 'stepped out of its role as legal counsel' to Velocity when it acted as a mere scrivener to draft the stock repurchase agreements. . . . The agreements state: 'The parties acknowledge and agree that Baker, Burton & Lundy, P.C. has drafted this Agreement according to the terms negotiated between the parties, and is not representing either party in its individual capacity with regard to this transaction. Buyer and Seller have each been advised to obtain independent legal and tax advice as to the terms and conditions hereof and its/his rights and obligations hereunder.'"; "However, Plaintiff's argument is contradicted by the facts alleged in Plaintiff's own FAC, which demonstrate an attorney client relationship between Defendant BB&L and Velocity."; "[B]ased on Plaintiff's own allegations and exhibits, the Court finds there was an attorney client relationship between Velocity and Defendant BB&L. Thus, Defendant BB&L is entitled to raise attorney client privilege.")

Case Date Jurisidction State Cite Checked
2012-11-05 Federal CA B 5/13

Chapter: 3.2

Case Name: Petra Mortg. Capital Corp., LLC v. Amalgamated Bank, 942 N.Y.S.2d 786, 786 (N.Y. App. Div. 2012)
("Defendant's commencement of an action as plaintiffs' agent pursuant to an 'Intercreditor and Servicing Agreement' did not create an attorney-client relationship between defendant's attorney and plaintiffs (see Bank of N.Y. v River Terrace Assoc., LLC, 23 AD3d 308, 311, 804 N.Y.S.2d 728 [2005]; see also In re Colocotronis Tanker Sec. Litig., 449 F Supp 828 [SD NY 1978]). Nor were defendant and plaintiffs fiduciaries merely because they participated in the same loans (see 330 Acquisition Co. v Regency Sav. Bank, 306 AD2d 154, 761 N.Y.S.2d 185 [2003])."; explaining in Eric Hornbeck, Amalgated Documents Privileged in $95M Condominium Row, Law360, Apr. 27, 2012 (describing New York appellate panel holding that a co originator of $95,000,000 in loans under an intercreditor agreement did not have to produce to its other co originators privileged communications with its two law firms; explaining that Amalgamated Bank had initiated foreclosure action on its own behalf and on behalf of its co originator Petra Mortgage; "Amalgamated Bank doesn't have to fork over documents from its attorneys at Cadwalader Wickersham & Taft LLP and Arnold & Porter LLP and give them to its co-lender on a $95 million loan for a New York City condominium development project, a New York state appeals court ruled Thursday. Amalgamated and Petra Capital Mortgage Corporation co-originated $95 million in loans under an intercreditor agreement to develop a luxury high-rise mixed-use condominium project and renovate a synagogue on the property, located in Manhattan's Hudson Heights neighborhood. Amalgamated served as the loan's servicer. But Petra sued Amalgamated, accusing it of exploiting the loans' complex structure and purposely dragging its feet on a foreclosure action against the project's borrower, an entity called Fort Tryon Tower SPE LLC, to protect Amalgamated's own financial interest and put Petra on the hook for millions of dollars. Petra said Amalgamated had to turn over documents from Cadwalader and Arnold & Porter, which Amalgamated had tapped to work on the foreclosure action against the Hudson Heights property. But a five-judge appeals panel said the documents were protected by attorney-client privilege. 'Defendant's commencement of an action as plaintiffs’ agent pursuant to an "intercreditor and servicing agreement" did not create an attorney-client relationship between defendant’s attorney and plaintiffs,' the panel ruled. 'Nor were defendant and plaintiffs fiduciaries merely because they participated in the same loans.' Arnold & Porter's Charles G. Berry, who represents Amalgamated Bank, told Law360 on Friday that the court's ruling spelled out what an agent bank in a syndicated lending agreement owes to its co-lenders. 'It does confirm and clarify an important rule of law which is that an agent or lead bank in a group of co-lenders . . . does not have a fiduciary duty to its co-lenders, and it therefore doesn't have to share privileged communications,' he said. A Petra attorney didn't immediately respond to a request for comment late Friday. Petra had contended that there was in fact a fiduciary relationship. While the intercreditor agreement 'doesn't say, "you are my fiduciary,"' there were enough indications throughout the agreement that created a classic fiduciary relationship between the two lenders, Petra attorney Todd E. Soloway of Pryor Cashman LLP told the judges during April 5 oral arguments. Petra has also paid hundreds of thousands of dollars of legal fees in the foreclosure action, and the two lenders even edited the complaint together, he said. 'We're in the same sphere,' Soloway said. "We're being represented jointly." Berry said during the hearing that neither Arnold & Porter nor Cadwalader where Berry previously worked ever represented Petra, and that the contract didn't include the unequivocal language necessary to create a fiduciary relationship between the two lenders.")

Case Date Jurisidction State Cite Checked
2012-01-01 State NY B 7/13

Chapter: 3.2

Case Name: Brownfield v. Hodous and Hodous, L.L.P., 82 Va. Cir. 315, 318 (Va. Cir. Ct. 2011)
("The existence or non-existence of an attorney-client relationship between Plaintiff and Defendants is a jury issue to be adjudicated at the hearing on Defendants' Plea in Bar.")

Case Date Jurisidction State Cite Checked
2011-01-01 State VA

Chapter: 3.2

Case Name: HSH Nordbank AG N.Y. Branch v Swerdlow, 259 F.R.D. 64, 71 & n.9, 72 (S.D.N.Y. 2009)
(assessing the common interest doctrine's applicability in a scenario in which an administrative agent for five lenders sued guartantors; explaining that the law firm of SNR acted as the administrative agent's lawyer, using the following language: "'Administrative Agent selected, and the other Lenders consented to the selection of, Sonnenschein Nath & Rosenthal LLP as Administrative Agent's counsel for all matters in connection with the Loan, the Project and the transactions contemplated by the Loan Documents. If, at any time during the term of the Loan, any Lender shall decide that its interests have become so divergent from the interests of the other Lenders or Administrative Agent that it does not feel it is prudent to be represented by the same counsel, such Lender may retain, at its sole cost and expense, its own counsel (but such Lender shall nevertheless remain responsible for its pro rata share of costs, expenses and liabilities including with respect to counsel selected by Administrative Agent)[.]'"; finding the common interest doctrine applicable; noting that "[w]hile federal case law makes clear that the common interest doctrine applies even where there is no litigation in progress, 'New York law appears to restrict the doctrine to communications with respect to legal advice "in pending or reasonably anticipated litiation [sic]."'" (citation omitted); "[B]ecause the non-party lenders were not represented by counsel at the time the communications at issue were made, defendants assert that any common interest privilege that may have existed has been waived."; rejecting defendants' argument; "Absent any authority to the contrary, it is immaterial that the confidential communications passed from Nordbank's counsel directly to the non-party lenders, rather than passing from Nordbank or its counsel to the non-party lenders' attorneys. Nordbank and the non-party lenders are co-lenders of the Loan and thus share a common interest in enforcing defendants' obligations under the Guaranties. Any doubt regarding this identity of legal interests is resolved by the terms of the Loan itself. Not only does the Loan identify Nordbank as the only party capable of 'enforc[ing] or exercis[ing] any of the . . . rights or remedies of or under any of the Loan Documents' . . ., but it also contemplates that Nordbank's counsel will effectively represent the interests of the various lenders, which interests are presumed to be identical.")

Case Date Jurisidction State Cite Checked
2009-01-01 Federal NY B 10/13

Chapter: 3.2

Case Name: Campbell v. Dastoor, 79 Va. Cir. 569, 570, 571 (Va. Cir. Ct. 2009)
(analyzing the privilege and work product implications of a doctor sued for medical malpractice moving to another employer (PCA), which was the named insured in the medical malpractice insurance policy; explaining that the new employer's president and CEO attended the defendant doctor's deposition and mediation, and "has been involved in face-to-face and telephone conversations with counsel for Defendant and with the claim specialist for Hudson [the medical malpractice insurance carrier]. Dr. Polverino [CEO] also received electronic mail from defense counsel, Hudson, and Defendant." (footnotes omitted); concluding that the attorney-client privilege did not protect communications between the new employer's president/CEO and the doctor's lawyer; "In this case, there was no attorney-client relationship between Defendant's counsel and Dr. Polverino at the time the communications were made. After Defendant filed his Motion to Quash, Dr. Polverino asked Defendant's counsel 'to represent him as well to the extent necessary in this matter, so as to avoid disclosure and injury to the defense of [Defendant].' Thus, the privilege does not apply." (footnote omitted); also concluding that the new employer's president/CEO was not the doctor's agent, and did not share a common interest with the doctor)

Case Date Jurisidction State Cite Checked
2009-01-01 State VA

Chapter: 3.2

Case Name: United States v. Under Seal (In re Grand Jury Investigation), 352 F. App'x 805, 807 (4th Cir. 2009)
("The attorney-client privilege is one such recognized privilege that protects confidential communications between attorney and client. Id. [In re Grand Jury Proceedings # 5, 401 F.3d 247, 250 (4th Cir. 2005)]")

Case Date Jurisidction State Cite Checked
2009-01-01 Federal

Chapter: 3.2

Case Name: Billings v. Stonewall Jackson Hosp., 635 F. Supp. 2d 442, 444-45 (W.D. Va. 2009)
("For the privilege to apply, certain elements are required. An attorney-client relationship must exist, and the communication must be for the purpose of seeking legal advice. See United States v. Tedder, 801 F.2d 1437, 1442 (4th Cir. 1986).")

Case Date Jurisidction State Cite Checked
2009-01-01 Federal VA

Chapter: 3.2

Case Name: United States v. Smith, Crim. A. No. 3:07CR433, 2008 U.S. Dist. LEXIS 64174, at *4 (E.D. Va. Aug. 21, 2008)
("The attorney-client privilege protects confidential communications between a client and his attorney. In re Grand Jury Proceedings # 5, 401 F.3d 247, 250 (4th Cir. 2005).")

Case Date Jurisidction State Cite Checked
2008-08-21 Federal VA

Chapter: 3.2

Case Name: Under Seal v. United States (In re Grand Jury Subpoena Under Seal), 415 F.3d 333, 339 (4th Cir. 2005)
("The person seeking to invoke the attorney-client privilege must prove that he is a client or that he affirmatively sought to become a client. 'The professional relationship . . . hinges upon the client's belief that he is consulting a lawyer in that capacity and his manifested intention to seek professional legal advice.' United States v. Evans, 113 F.3d 1457, 1465 (7th Cir. 1997). An individual's subjective belief that he is represented is not alone sufficient to create an attorney-client relationship. . . . Rather, the putative client must show that his subjective belief that an attorney-client relationship existed was reasonable under the circumstances."), cert. denied, 126 S. Ct. 1114 (2006)

Case Date Jurisidction State Cite Checked
2005-01-01 Federal

Chapter: 3.2

Case Name: Bank of New York v. River Terrace Assocs., LLC, 804 N.Y.S.2d 728, 730 (N.Y App. Div. 2005)
(finding that a bank acting as agent on behalf of other banks did not have a fiduciary duty to the other banks; "The motion court providently exercised its discretion in denying the other banks' motion to compel. Even though BNY is called 'Agent' in the credit agreement, the agreement and the case law make it clear that BNY is not a fiduciary . . . . Thus, we reject the other banks' argument that BNY, as agent, lacks standing to assert the attorney-client privilege against its principals . . . . The admission of a BNY employee, who is not a lawyer, that BNY's outside counsel represented the other banks is not determinative.")

Case Date Jurisidction State Cite Checked
2005-01-01 State NY B 8/13

Chapter: 3.2

Case Name: 330 Acquisition Co., LLC v. Regency Sav. Bank, F.S.B. 761 N.Y.S.2d 185, 185 (N.Y. App. Div. 2003)
("As a general matter, banks who participate in loans together are not fiduciaries, but act at arm's length")

Case Date Jurisidction State Cite Checked
2003-01-01 State NY B 8/13

Chapter: 3.2

Case Name: Stokes v. Firestone (In re Stokes), 156 B.R. 181, 186 (Bankr. E.D. Va. 1993)
("It is well established, however, that the payment or nonpayment of fees does not establish the existence of an attorney-client relationship.")

Case Date Jurisidction State Cite Checked
1993-01-01 Federal

Chapter: 3.2

Case Name: In re Colocotronis Tanker Sec. Litig., 449 F. Supp. 828, 831, 832, 833 (S.D.N.Y. 1978)
(holding that a lawyer for a bank acting as agent in a loan participation did not represent the other participating banks; analyzing both the pre-workout context and the workout context; "Thus, no claim can be made that these firms were actually representing the participant banks in the pre-workout period, in which approximately five-sixths of the disputed documents were generated."; "[T]he fact that EABC [European-American Banking Corp.] billed the banks in a letter which stated that the firms were retained 'to provide the Banks with legal advice,' does not necessarily indicate that the banks were to be regarded as clients of the firms. EABC argues that these bills were submitted pursuant to Paragraph 5 of the standard loan participation agreement, which obligated the banks to reimburse EABC for 'any and all costs, expenses and disbursements which may be incurred or made by [EABC] in connection with the Loan' for which EABC was not otherwise reimbursed. . . . The reference to 'the Banks' can be taken to indicate no more than that EABC thought that the services of the firms in facilitating the workout of the loans would redound to the ultimate benefit of the participant banks."; "[T]he Court concludes that the banks were not actual clients of the firms. Rather, the sole actual client was EABC, the entity which sought out the firms, which communicated with them in confidence and which looked to them for advice which would protect the interests of EABC. In the absence of any comparable evidence which would demonstrate the existence of such a relationship of trust, confidence and mutual reliance between the banks and the firms, the few facts which the banks have put forward are insufficient to establish them as actual clients of these law firms."; also rejecting the application of the Garner doctrine, because there was not fiduciary relationship; "[T]hese agreements are arms-length contracts between relatively sophisticated financial institutions and do not establish fiduciary relationships such as exist between the management of a corporation and the corporation's shareholders or even its debenture holders."; allowing the agent bank to claim privilege in resisting discovery from the other participating banks)

Case Date Jurisidction State Cite Checked
1978-01-01 Federal NY B 10/13

Chapter: 3.4

Case Name: Havel v. Dentsu McGarry Bowen UK Ltd., Civ. A. No. H-13-1291, 2014 U.S. Dist. LEXIS 181327 (S.D. Tex. Jan. 29, 2015)
("Under both federal common law and Rule 503, the client, not the client's attorney, is the holds the privilege.")

Case Date Jurisidction State Cite Checked
2015-01-29 Federal TX

Chapter: 3.4

Case Name: In re Gulf States Long Term Acute Care of Covington, L.L.C., Case No. 09-11116, Sec. A, Ch. 11, 2014 Bankr. LEXIS 1972 (E.D. La. May 1, 2014)
(analyzing privilege ownership in a Chapter 11 case before a trustee has been appointed; "The client, not the attorney, holds the attorney-client privilege.' Since the client holds the privilege, only the client or his agent may waive it. An attorney may assert the privilege on the client's behalf when subpoenaed to produce confidential documents. However, an attorney cannot assert the privilege 'for his own benefit when his client desires to waive it.'"; "In a Bankruptcy Case under Chapter 11 in which no trustee has been appointed, the debtor-in-possession 'controls the attorney-client privilege with respect to both its pre- and post-petition communications.' Once a plan of reorganization is confirmed, all property of the estate vests in the reorganized debtor unless transferred to a third party in the plan.")

Case Date Jurisidction State Cite Checked
2014-05-01 Federal LA

Chapter: 3.4

Case Name: State ex rel. State v. Burnside, 757 S.E.2d 803, 812 (W. Va. Ct. App. 2014)
(finding admissible a recording of a conversation in which a lawyer sold cocaine to a police informant in the lawyer's offices; "Lawyer Hardison was not acting in his capacity as a lawyer during his April 6, 2012, conversation with the confidential informant. The confidential informant was not seeking legal advice from Lawyer Hardison; he was allegedly only seeking to purchase cocaine from him. Further, the confidential informant, having agreed to wear a recording device, did not intend that this conversation be kept confidential. Finally, the attorney-client privilege 'belongs to the client.' State ex rel. Allstate Ins. Co. v. Gaughan, 203 W.Va. 358, 372, n.21, 508 S.E.2d 75, 89, n. 21 (1998). The confidential informant, as the putative client in this case, has not asserted the privilege. Because the conversation was not attorney-client in nature, the circuit court erred by suppressing the audio recording under W.Va. Code § 62-1D-9(d).")

Case Date Jurisidction State Cite Checked
2014-01-01 State WV B 9/14

Chapter: 3.4

Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 619 n.271 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "'In contrast, the client is the holder of the attorney-client privilege and, while an attorney may assert the privilege on her client's behalf, the privilege is solely for the client's benefit.'")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal FL B 4/14

Chapter: 3.4

Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 584 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "An attorney is entitled to assert the privilege on her client's behalf, and -- absent contrary evidence -- is presumed to have the authority to do so . . . but after the client waives the privilege it is no longer available for assertion by the attorney.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal FL B 4/14

Chapter: 3.4

Case Name: Ctr. Partners, Ltd. v. Growth Head GP, LLC, 981 N.E.2d 345, 356 (Ill. 2012)
(holding that disclosure of privileged communications during an earlier business transaction did not trigger a subject matter waiver; "The attorney-client privilege belongs to the client, rather than the attorney, although the attorney asserts the privilege on behalf of the client. . . . Only the client may waive the privilege. . . . The attorney, although presumed to have authority to waive the privilege on the client's behalf, may not do so over the client's objection.")

Case Date Jurisidction State Cite Checked
2012-01-01 State IL B 8/13

Chapter: 3.4

Case Name: Smith v. James C. Hormel Sch. of the Va. Inst. of Autism, Civ. A. No. 3:08cv00030, 2010 U.S. Dist. LEXIS 95668, at *6-7 (W.D. Va. Sept. 14, 2010)
("[T]he court notes with respect to the first prong that the Smiths have provided no evidence to suggest they retained Attorney Katzerman or sought to become her clients. However, '[i]t is not necessary that an attorney-client relation have actually existed. One who consults a lawyer with a view to obtaining professional legal services from him or her is regarded as a client for purposes of the privilege.' 8 Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice & Procedure § 2017 (3d ed. 2010); see also United States v. Cohn, 303 F. Supp. 2d 672, 682 (D. Md. 2003) ('An attorney-client privilege attaches when the attorney is acting to provide primarily legal services, assistance or opinions.' (citing Jones, 696 F.2d at 1072)); Trinity Ambulance Serv., Inc. v. G & L Ambulance Servs., Inc., 578 F. Supp. 1280, 1283 (D. Conn. 1984) ('An attorney-client relationship is said to exist when the party divulging confidences and secrets to an attorney believes that he is approaching the attorney in a professional capacity with the intent to secure legal advice.'). A review of the documents at issue makes clear that these communications were made by Mr. Smith to a member of the bar of a court in her professional capacity outside the presence of others with the intent of securing legal advice." (footnote omitted).)

Case Date Jurisidction State Cite Checked
2010-09-14 Federal

Chapter: 3.4

Case Name: United States v. Smith, Crim. A. No. 3:07CR433, 2008 U.S. Dist. LEXIS 64174, at *5 (E.D. Va. Aug. 21, 2008)
("The client, not his attorney, holds the privilege." In re Grand Jury Proceedings # 5, 401 F.3d at 250")

Case Date Jurisidction State Cite Checked
2008-08-21 Federal

Chapter: 3.4

Case Name: United States v. Under Seal# 4 (In re Grand Jury Subpoena #06-1), 274 Fed. App'x 306, 309 n.3 (4th Cir. 2008) (unpublished opinion)
(assessing the crime-fraud exception; "It is well established that if the client may invoke attorney client privilege to protect confidential communications, then the client's attorney . . . may also do so on the client's behalf.")

Case Date Jurisidction State Cite Checked
2008-01-01 Federal B 6/09

Chapter: 3.4

Case Name: Sayre Enters., Inc. v. Allstate Ins. Co., Civ. No. 5:06cv00036, 2006 U.S. Dist. LEXIS 89097, at *8 (W.D. Va. Dec. 8, 2006)
("In Virginia, it appears to be 'well-settled that between an attorney and his client confidential communications made because of that relationship and concerning the subject matter of the attorney's employment, are privileged from disclosure, even for the purpose of administering justice. [Citing cases].' Seventh Dist. Committee v. Gunter, 212 Va. 278, 287, 183 S.E.2d 713, 719 (1971) (quoting Grant v. Harris, 116 Va. 642, 648-49, 82 S.E. 718, 719 (1914). It is equally well-settled that the privilege is for the benefit of the client and may be waived. See Tate v. Tate, 75 Va. 522, 533 (1881).")

Case Date Jurisidction State Cite Checked
2006-12-08 Federal VA

Chapter: 3.4

Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 250 (4th Cir. 2005)
("Because the attorney-client privilege exists for the benefit of the client, the client holds the privilege.")

Case Date Jurisidction State Cite Checked
2005-01-01 Federal N 11/05

Chapter: 3.4

Case Name: United States v. Lentz, 419 F. Supp. 2d 820, 826 (E.D. Va. 2005)
("The privilege belongs to the client, not the attorney. See In re: Grand Jury Proceedings # 5, 401 F.3d 247, 250 (4th Cir. 2005); Hawkins v. Stables, 148 F.3d 379, 384 n.4 (4th Cir. 1998)."), aff'd, 524 F.3d 501 (4th Cir.), cert. denied, 129 S. Ct. 303 (2008)

Case Date Jurisidction State Cite Checked
2005-01-01 Federal

Chapter: 3.4

Case Name: In re Grand Jury Proceedings, Thursday Special Grand Jury, Sept. Term, 33 F.3d 342, 348 (4th Cir. 1994)
("The client is the holder of the privilege.")

Case Date Jurisidction State Cite Checked
1994-01-01 Federal

Chapter: 3.4

Case Name: In re Bryant, 27 Va. Cir. 414, 418 (Va. Cir. Ct. 1992)
("an attorney may assert the privilege on behalf of a client")

Case Date Jurisidction State Cite Checked
1992-01-01 State VA

Chapter: 3.4

Case Name: X Corp. v. Doe, 805 F. Supp. 1298, 1305 n.12 (E.D. Va. 1992)
(analyzing a lawsuit in which an in-house lawyer alleged wrongful termination; "The privilege belongs to the client, not the attorney."; ultimately concluding that the employee was entitled to a preliminary injunction preventing the in-house lawyer plaintiff from disclosing confidential information beyond his own lawyer, but refusing to order the plaintiff to return documents that he had taken when he left his employment; the Fourth Circuit ultimately upheld a permanent injunction prohibiting the in-house lawyer from disclosing confidential communication, Under Seal v. Under Seal, No. 93-1495, 1994 U.S. App. LEXIS 3143, 17 F.3d 1435 (4th Cir. Feb. 23, 1994) (unpublished opinion))

Case Date Jurisidction State Cite Checked
1992-01-01 Federal N 3/10

Chapter: 3.4

Case Name: Parker v. Carter, 18 Va. (4 Munf.) 273, 286-87, 275 (1814)
("This court understands it to be the settled law, that counsel and attornies ought not to be permitted to give evidence of facts imparted to them, by their clients, when acting in their professional character; that they are considered as identified with their clients, and, of necessity, entrusted with their secrets, which, therefore, without a dangerous breach of confidence, cannot be revealed; that this obligation of secrecy continues always, and is the privilege of the client, and not of the attorney.")

Case Date Jurisidction State Cite Checked
1814-01-01 State VA