A recent New York Court of Appeals decision clarified the scope of the attorneyclient privilege under New York law. In Matter of Appellate Advocates v. New York State Department of Corrections & Community Supervision, the Court of Appeals held that the documents were privileged where they were created as training materials for the client; did not address a “real world factual situation”; and were not prepared in response to a direct request for legal advice. No. 91, 2023 N.Y. Slip Op. 06466 (N.Y. Dec. 19, 2023).  

All practitioners should ensure that they are familiar with the parameters of the attorney-client privilege, which is the oldest common law evidentiary privilege. See Spectrum Sys. Int’l Corp. v. Chem. Bank, 78 N.Y.2d 371, 377 (N.Y. 1991). While CPLR §4503(a)(1) codifies the privilege in New York, courts also turn to the common law to determine whether materials are exempt from disclosure. Id.  

By way of reminder, under New York law, the privilege protects communications from both the attorney and the client; when coming from an attorney, communications are protected when they are made in the course of the professional relationship and they have the purpose of facilitating legal advice or services. Rossi v. Blue Cross & Blue Shield of Greater N.Y., 73 N.Y.2d 588, 593 (N.Y. 1989).  

Courts will view the communication as a whole to determine if it is primarily for legal purposes, as opposed to, for example, business purposes. Communications are protected only if they are confidential and the client has not waived the privilege. Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 27 N.Y.3d 616, 624 (N.Y. 2016).  

In Matter of Appellate Advocates, the court revisited and reinforced the long-standing privilege doctrine. Appellate Advocates, a public defender organization, filed a Freedom of Information Law (FOIL) request for documents from the Department of Corrections and Community Supervision (DOCCS) pertaining to the Board of Parole’s decision-making process. DOCCS produced thousands of pages of documents but withheld a small number based on the attorneyclient privilege, invoking the FOIL provision which allows agencies to withhold records exempted from disclosure by state or federal statute.  

The Court of Appeals applied well-established caselaw on the attorney-client privilege to conclude that the DOCCS materials, which “reflect[ed] counsel’s legal analysis of statutory, regulatory, and decisional law,” were privileged and exempt from FOIL disclosure. 

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For further information, please contact:

Lauren E. Aguiar, Partner, Skadden

[email protected]