Court Holds That Reliance On Advice Of Counsel In A Public Press Release Waives Attorney-Client Privilege

On December 9, 2024, Justice Andrew Borrok issued an order holding that a judgment debtor’s public denial of fraud allegations in a press release “based on and in reliance on advice received from outside counsel’s . . . investigation” waived its ability to assert attorney-client privilege over the investigation. The order in Altium Growth Fund, L.P., et al., v. Tingo Group, Inc., Index No. 651910/2023, resulted from motions made after the debtor’s counsel, Greenberg Traurig, LLP, refused to answer certain questions at a deposition based on an assertion of the attorney-client privilege. The Court explained:

Reference is made to a certain press release, dated August 30, 2023 . . . , pursuant to which Tingo publicly denied the fraud allegations in the Hindenburg Report based on and in reliance on advice received from outside counsel’s (i.e., Greenberg) and its investigation of the allegations. Having relied on Greenberg’s investigation in making the false statements, Tingo cannot now assert privilege over it . . . . There are no issues of fact as to whether the statements rendered in response to the Hindenburg Report were false and in furtherance of the fraud. Thus, even if any privilege that may have existed was not waived, the statements and communications made by Tingo in furtherance of a fraudulent scheme would be subject to disclosure based on the crime-fraud exception as well.

The attorneys at Schlam Stone & Dolan frequently advise clients concerning discovery obligations, depositions, and assertions of privilege. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning such issues.