Privilege Waived Where Client’s Father Passed Messages Between Incarcerated Client and His Attorneys

On April 7, 2024, Justice Andrea Masley granted a petitioner’s motion to compel the production of communications from the law firm Hecht Partners, LLP in response to the petitioner’s judgment-enforcement subpoena. In TGT, LLC v. Joseph Meli, et al., Index No. 153682/2023, petitioner TGT, LLC sought communications between the law firm and its then-client, Joseph Meli, during a period when Meli had been incarcerated. Meli had relied on his father to communicate back-and-forth with the law firm. The Court rejected the law firm’s assertion of attorney-client privilege and the common interest exception, holding that the participation of Meli’s father in the communications had waived any privilege. The Court explained:

[Hecht Partners] contends that Joseph “reasonably believed that his attorney’s communications with him while he was incarcerated, through his father, would be confidential.” . . . [And it] points to various indicia of [the father] Richard’s agency. . . . However, “[t]he scope of the privilege is not defined by the third parties’ employment or function.” Instead, “it depends on whether the client had a reasonable expectation of confidentiality under the circumstances.” . . . Moreover, Hecht fails to explain, much less offer any evidence of, how Richard’s participation was necessary to facilitate attorney-client communication. . . . Accordingly, Hecht fails to demonstrate that the agency exception preserves the attorney-client privilege as to communications involving Richard.

The attorneys at Schlam Stone & Dolan frequently advise clients and litigate disputes concerning the scope of the attorney-client privilege and the common interest exception. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning such issues.