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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-2689" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2016/07/Attorney-client-communication-300x196.jpg" alt="Attorney-client communication" width="300" height="196">The attorney-client privilege covers ethics advice that lawyers get from their law firm&rsquo;s general counsel, and the communications do not need to be disclosed to the client, said a unanimous five-judge panel of the New York Appellate Division last week, in a closely-watched case. In <a href="http://filehost.thompsonhine.com/uploads/Stock_v._Schnader_6ce2.pdf">Stock v. Schnader Harrison Segal &amp; Lewis LLP</a>, the court ruled that the law firm was the &ldquo;real client&rdquo; in getting the advice from the GC, and held that the fiduciary exception didn&rsquo;t apply.
Underlying case:&nbsp; tale of expiring stock options
We have been following developments&nbsp;since late 2014, when the <a href="https://www.thelawforlawyerstoday.com/2015/02/in-house-firm-counsel-privilege-will-the-favorable-trend-continue/">trial court decided </a>in Stock&rsquo;s legal malpractice case that the privilege did not apply to communications that&nbsp;lawyers at the Schnader firm had with the firm&rsquo;s general counsel in the underlying case.&nbsp;&nbsp;(Thompson Hine LLP, the sponsor of this blog, was one of <a href="https://www.thelawforlawyerstoday.com/2015/05/seventy-four-amicus-firms-weigh-in-to-support-in-house-firm-counsel-privilege/">74 firms signing on to an amicus brief </a>seeking reversal of the trial court&rsquo;s ruling.)
In the underlying case, the Schnader firm represented the client in negotiating his separation from his employer.&nbsp; The firm did not negotiate an extension of the exercise period for the&nbsp;client&rsquo;s vested stock options.&nbsp; When the former employer later advised the client that more than $5 million in options had expired with the termination of his employment, the client consulted the Schnader firm again about his remedies.&nbsp; In an arbitration before the Financial Industry Regulatory Authority (FINRA), the employer said that it was going to subpoena the lawyers who handled the separation agreement negotiation, and indicated that it was seeking to point the finger at the law firm as being partly responsible for any loss to the client.
That sent the Schnader lawyers to their firm&rsquo;s general counsel for ethics advice.&nbsp; When Stock eventually sued the Schnader firm for malpractice, he sought production of 24 e-mails reflecting that advice.
The New York County commercial division court ordered&nbsp;the firm to turn over the documents.&nbsp;&nbsp;Without extensive analysis, the court agreed with the&nbsp;plaintiff client&nbsp;that the firm lawyers did not expect their communications with the firm&rsquo;s general counsel to be kept confidential from the client. &nbsp;The court also invoked the &ldquo;fiduciary exception&rdquo; to privilege, saying&nbsp;that the client had &ldquo;a right to disclosure from his fiduciaries of communications that directly correlate to his claims of self-dealing and conflict of interest.&rdquo;
Trial court ruling is reversed
In a 28-page opinion, a five-judge panel&nbsp;of the Appellate Division&rsquo;s First Department unanimously reversed.
The court rejected application of the fiduciary exception, ruling that&nbsp;the Schnader lawyers &ldquo;had their own reasons, apart from any duty owed&nbsp;to plaintiff, for seeking the legal&nbsp;guidance ... Because the purpose of the consultation with [the firm&rsquo;s GC] ... was to ensure that the attorneys and the firm understood and adhered to their ethical obligations as legal professionals, the attorneys and the firm, not plaintiff, were the &lsquo;real clients&rsquo; in this consultation.&rdquo;
The court put particular emphasis on two facts:&nbsp; first, that&nbsp;the Schnader firm&rsquo;s general counsel had never participated in the client&rsquo;s representation; and second, that the&nbsp;firm did not bill the client for the lawyers&rsquo; ethics consult with the GC.&nbsp; That solidified the court&rsquo;s view that the firm and its lawyers were the clients, and entitled to the&nbsp;privilege protection available to other clients.
Relying on New York state ethics opinions, the court also said that &ldquo;we do not believe that a consultation by attorneys with their firm&rsquo;s in-house counsel on a purely ethical issue arising from the representation of a current client ... inherently gives rise to a conflict of interest between the firm and the client.&rdquo;
Adding to a&nbsp;trend?
In reaching its conclusion, the Stock court cited similar recent holdings from state high courts in <a href="http://caselaw.findlaw.com/ga-supreme-court/1638454.html">Georgia </a>and <a href="http://masscases.com/cases/sjc/465/465mass702.html">Massachusetts</a>.&nbsp; The <a href="http://filehost.thompsonhine.com/uploads/2013_hod_annual_meeting_103.authcheckdam_db4a.docx">ABA has also taken the position </a>that the fiduciary exception does not apply to confidential communications between law firm personnel and the firm&rsquo;s in-house or outside counsel, even regarding the firm&rsquo;s duties or potential liability to a current client.&nbsp; That favorable trend continues, with the opinion of this influential court.

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Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Firm counsel privilege prevails; New York joins favorable trend in recognizing doctrine