Attorney-Client Relationship

Notwithstanding general public opinion of attorney ethics, most people (including attorneys) believe that an attorney cannot dump a client in the middle of litigation to represent the other side. However, attorneys in the First Department may be surprised to learn that, in certain circumstances, a representation adverse to their former clients, even in litigation arising from substantially similar facts and issues, is sometimes allowed. Justice Shirley W. Kornreich of the New York County Supreme Court recently discussed these circumstances in two related decisions (found here and here) over the past year (Omnivere, LLC v. Friedman, No. 154544/2016).

First, some brief factual background. In 2013, Marcie Balint sold her legal staffing company, B3, to various individuals and companies referred to in subsequent litigation as “the Friedman Parties,” who then sold B3 to Omnivere, LLC. In 2014, Balint, represented by attorney Robert Bernstein of Eaton & Van Winkle, sued Omnivere, LLC and the Friedman Parties to enforce a consulting agreement. In response, the Friedman Parties asserted a third-party claim against the former CEO of B3, Gadi Rosenfeld, for allegedly approving a version of Balint’s consulting agreement that was different from the version that had been authorized.

On October 20, 2014, Rosenfeld met with Bernstein and provided documents and information to assist Balint in her actions against Omnivere, LLC and the Friedman Parties. In exchange, Bernstein agreed to represent Rosenfeld at a reduced hourly rate in the Friedman Parties action only (in May 2015, Rosenfeld, represented by separate counsel, commenced an action against Omnivere, represented at the time by Perkins Coie, alleging nonpayment of consulting fees).

At some point during the following year (when, exactly, was the subject of debate between the parties), Bernstein claimed to have become aware that Rosenfeld assisted the Friedman Parties in lying to Omnivere about the financial condition of B3 and other companies that Omnivere purchased from the Friedman Parties. In September of 2015, Balint settled with Omnivere, and together they joined forces with Bernstein as counsel in the remaining litigations with the Friedman Parties and Rosenfeld. Consequently, in November of 2015 Bernstein withdrew as counsel to Rosenfeld and replaced Perkins Coie as counsel of record to Omnivere.

On May 27, 2016, Omnivere commenced a new action against the Friedman Parties asserting causes of action for fraud, breaches of the asset purchase agreement governing the sale of B3, and conversion. Although Rosenfeld was not a named defendant, Omnivere’s complaint alleged Rosenfeld’s participation in the fraudulent scheme. If Omnivere prevails, Rosenfeld will lose shares of Omnivere equity.

Based on Bernstein’s prior representation of Rosenfeld, the Friedman Parties and Rosenfeld moved to disqualify Bernstein. Justice Kornreich denied the motion.

The Friedman Parties’ motion was denied because they had never been former clients of Bernstein and therefore lacked standing. The court held that it lacked authority to grant disqualification motions to non-clients, especially where such motions were intended as a litigation tactic, because the power to sanction attorneys for ethical violations is “principally vested in the Appellate Divisions.”

As for Rosenfeld’s motion, the court found that there was insufficient proof that Rosenfeld had actually provided information to Bernstein during the prior representation that would be prejudicial to Rosenfeld. Citing the First Department’s decision in Mayers v Stone Castle Partners, LLC, 126 AD3d 1, 6 (1st Dept 2015), the court held that rather than simply resolving all doubts in favor of disqualification to avoid the appearance of impropriety, as was required under the old rules, disqualification should be denied if “the conveyed information did not have the potential to be significantly harmful to the former client in the matter from which he seeks to disqualify counsel.” This standard required an evidentiary hearing to determine what information was actually conveyed from Rosenfeld to Bernstein and whether it had the potential to be significantly harmful to Rosenfeld. The Special Referree conducted a two-day hearing and issued a report finding that no “confidences that were harmful to Rosenfeld” had been disclosed to Bernstein.

Justice Kornreich appeared to have had misgivings about the proper application of the First Department’s decision in Mayers, noting that other Appellate Division Departments (as well as the First Department, occasionally) still apply the rule that doubts must be resolved in favor of disqualification. Justice Kornreich therefore explicitly appealed to the First Department for additional “guidance” on the continued applicability of this rule, as well as whether the requirement that the conveyed information have the potential to be “significantly harmful” is consistent with the Court of Appeal’s apparent holding to the contrary in Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 131 (1996) (“By mandating disqualification irrespective of any actual detriment—that is, ‘even when there may not, in fact, be any conflict of interest’—the rule also avoids any suggestion of impropriety on the part of the attorney.”). Indeed, other recent decisions by the First Department involving legal professionals “switching sides” indicates continued adherence to the rule that “whether there is a conflict of interest must be resolved in favor of disqualification.” See USA Recycling, Inc. v Baldwin Endico Realty Assocs., Inc., 147 AD3d 697 (1st Dept 2017).

Until further clarification is received from the First Department, attorneys for now may evaluate representations adverse to former clients based on whether there would be actual prejudice to the former client, without regard to the appearance of impropriety or unfairness to other (non-client) parties.

So you were just retained on what could become a high-profile case.  The stakes are high, and it’s unclear how this will play in the media.  The issue may arise based on the parties to the case, the nature of the claims, or both.  Either way, as part of your litigation strategy, you decide that the assistance and guidance of a public relations or media crisis management firm is wise and necessary to render effective counsel.  You prepare your standard Kovel letter, and retain the PR consultant to assist.  As part of that engagement, you advise both consultant and client that it is essential that  you — as counsel — be copied on all communications so as to ensure the protection of privileged communications.  Is this enough protection to guard against the PR consultant from being compelled to disclose communications?  Maybe not.

In Gottwald v. Sebert, a case involving singer-songwriter and recording artist Kesha, Justice Shirley Kornreich ordered non-party Sunshine Sachs (the PR consultant) to produce certain documents identified on its privilege log.  The court held that the communications with the PR agency were not necessary for the rendering of legal advice.  Simply copying an attorney on the communication is not enough to invoke the attorney client privilege.  In footnote 7, the court raised an issue with respect to draft complaints logged and whether they were protected by the work product doctrine, which the court noted “is less likely to result in a waiver than with the attorney-client privilege.”  Following the court’s decision, counsel for defendant submitted a letter addressing the work product issue and why it prevented disclosure of certain materials.  The parties have been ordered to address this issue at an upcoming court conference in December.

Hiring a PR consultant to assist counsel navigate the media minefield, although wise, can be risky.  The court in Gottwald  analyzed the growing body of case law in this area, particularly in the federal courts within the Second Circuit, which seem to lean toward not finding “necessity” for the PR consultant’s involvement, but they are more apt consider application of the attorney work product doctrine.  Of course, unlike privilege, work product may, under certain circumstances be invaded, see Fed. R. Civ. P. 26(b)(3)(A).

There are several key decisions from the federal courts on this issue, namely, In re Chevron (SDNY; Kaplan, J.), Calvin Klein Trademark Trust v. Wachner (SDNY; Rakoff, J.), and Bloomingburg Jewish Educ. Ctr. v. Vill. of Bloomingburg (SDNY; Forrest, J.), that are a “must read” before engaging a PR consultant.  In New York, there is a scarcity of decisions, but the First Department in 2014 ruled in Pecile v. Titan Cap. Group, LLC that communications with a PR consultant do not per se waive the privilege.   The common thread in all of these authorities is to determine whether the particular communications with the PR consultant are necessary in order for counsel to render informed legal advice to the client.


In an action brought against a title company for losses in connection with a property sale, Justice Elizabeth H. Emerson, in JBGR LLC v. Chicago Title Ins. Co., denied the title insurer’s motion to amend its answer to add defenses, but also denied plaintiffs’ motion for a protective order concerning a withheld memorandum prepared by plaintiffs’ “expediter”.

This is the latest suit involving a 286-acre parcel of property for the development of homes surrounding a golf course on Long Island.  In an earlier suit, the court awarded $2.97 million in damages against the plaintiffs in the current action based upon a promissory note default.  In turn, plaintiffs sued Chicago Title, title insurer of the sale.  In short, plaintiffs allege they were unaware of a 1997 declaration that restricted development to 140 homes, of which the title insurer failed to advise.  Plaintiffs intended to build another 55 homes on the property, but couldn’t.

After years of discovery and motion practice, the case was certified trial ready, and note of issue filed in December 2016.  Post note of issue motions were then filed.  Defendant filed a motion to amend its answer to withdraw certain defenses, modify others and add six more.  Plaintiffs cross-moved for a protective order, seeking to prevent disclosure of a memorandum produced to defendant, based upon attorney client privilege and work product doctrines.

As to the proposed amendments, the court concluded that the delay, coupled with prejudice, warranted denial.  In considering the prejudice, the court applied the same elements used in the laches context, and noted that once certified as “trial ready”, the court’s discretion “should be discrete, circumspect, prudent, and cautious”.  In this case, the court focused particularly on how long defendant was aware of the facts, which had been since June 2015.

An even more significant ruling, however, was the denial of the motion for a protective order.  The memorandum in question was a memo generated by Joseph Dempsey, an attorney, summarizing a meeting held in 2010, at which the municipal applications for the development were discussed.  Defendant obtained the document through a third-party subpoena served upon one of the participants to the meeting, Victor Prusinowski.  Mr. Prusinowski described in his deposition that he was an expediter or “land-use consultant”.  The court held that the memo was not protected from disclosure on three grounds.  First, Prusinowski’s advice, as a non-lawyer service provider, while “important” to the legal advice given to the clients, was not “given to facilitate such legal advice”, and therefore the agency principle did not apply here and his presence waived any privilege.  Second, even if it were privileged, the court concluded that there was a waiver, since “plaintiffs’ took no concrete steps to obtain a ruling” or seek a claw-back for nearly two years.   Finally, the court concluded that the memo prepared by Dempsey was not considered “work product”, since he wasn’t acting as counsel when prepared.  The memo did not contain “language uniquely reflecting a lawyer’s learning an [sic] professional skills, including legal research, analysis, conclusions, legal theory or strategy”.

And all this means what?  As to amendments, consider amending or seeking leave soon after the new facts arise.  Although there may be strategy in waiting to amend, the courts will focus on how long you knew, and whether you had a reasonable excuse for the delay.  As to privilege, when working with non-lawyer service providers, courts will carefully scrutinize their retention, scope of services and their “necessity” for the rendering or facilitation of legal advice.  Consider whether counsel — and not the client — should retain the provider, and whether a Kovel agreement is needed.


CPLR 3211(a)(1) provides for the dismissal of a claim so long as the defense is based upon “documentary evidence”.  We’ve seen this used successfully in mortgage note cases, (e.g., Bronxville Knolls, Inc. v. Webster Town Center Partnership, [1st Dep’t 1995]), as well as lease litigation (e.g., 150 Broadway N.Y. Assocs., L.P. v. Bodner, [1st Dep’t 2004]), but how about in a legal malpractice case?  Does a termination letter from lawyer to client operate to successfully cut off malpractice claims as a matter of law?

shutterstock_420696979This defense was argued in Prott v. Lewin & Baglio, LLP, where the Second Department upheld the denial of a motion to dismiss based upon documentary evidence.  There, the plaintiff claimed that the defendant law firm was retained, but failed to timely commence an action later held barred by the statute of limitations.  The defendant law firm raised as a defense, that it had terminated the relationship earlier.  The documentary evidence proffered was the law firm’s termination letter in September 2012 — prior to the expiration of the applicable statute of limitations set to expire December 2012.  The trial court and Appellate Division held, however, that the letter failed to “utterly refute” plaintiff’s claim, which is a necessary finding to mount a successful 3211(a)(1) defense.

When terminating or declining a client relationship, be mindful that some courts have held that where the expiration of the limitations period is clear, the date should have been specified to the client in the letter, see, e.g., Burke v. Landau, Miller & Moran, where the First Department held that a question of fact existed when the non-engagement letter did not specify the date in the letter.