As the case progressed, Meissner and Yun, the two former business partners, entered the discovery phase. Meissner sought the disclosure of some email threads between Yun and attorney Christopher Kelly. Yun claimed that they were protected by attorney-client privilege and refused to produce them.
As the court noted, for a party to assert this privilege, an attorney-client relationship must exist. And such a relationship exists when a party contacts the attorney in his or her capacity as an attorney for the purpose of obtaining legal advice or service. Simple enough, right? Additionally, the court said, the information sought to be protected must be a “confidential communication” made to the attorney for the purpose of obtaining legal advice or services. So a conversation between you and your attorney about your latest vacation, or even the financial state of your company, would not be protected, unless it’s for the purpose of obtaining the attorney’s legal advice. Moreover, even when it’s related to the attorney’s legal advice, it would not be protected if it’s made in the presence of third parties (e.g., in a public space where other people can hear you), because such conversation would not be confidential.
As it turned out, in this case, Kelly represented Manhattan Review, LLC (the “company”), the company founded by Meissner and Yun. The court noted that the only retainer agreement produced by Yun was an unsigned retainer agreement between Kelly and the company and the legal work Kelly did was for the benefit of the company, including company formation, drafting of the company’s operating agreement, and providing advice about the company’s lease. The only evidence Yun offered to support the claim that Kelly was her attorney was that she used her personal email address to communicate with Kelly and that Kelly believed he represented Yun as an individual, none of which was sufficient to establish an attorney-client relationship.
Looking at the emails Meissner sought from Yun, the court concluded that none of them was protected. For example, one email chain in which Yun contacted Kelly to advise the company regarding issues related to state unemployment insurance was not privileged because Kelly represented the company, not Yun, and, thus, there was no attorney-client relationship between Kelly and Yun. And another email chain in which Yun informed Kelly of a dispute with Meissner regarding the ownership of the company and asked for copies of state flings regarding the company’s formation was not privileged, either, because, again, Kelly represented the company, not Yun.
So, is my company’s lawyer also my lawyer? Not necessarily, and in most cases, no. Business owners should be mindful of this distinction when they communicate with their company counsel.
This was part of a two-part series on attorney-client privilege. You can find the other post by searching our blogs at www.mcbrideattorneys.com. If you have any questions about the content of this blog or other business law issues not discussed here, please contact us.
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This posting is intended to be a planning tool to familiarize readers with some of the high-level issues discussed herein. This is not meant to be a comprehensive discussion and additional details should be discussed with your transaction planners including attorneys, accountants, consultants, bankers, and other business planners who can provide advice for your circumstances. This article should not be treated as legal advice to any person or entity.
Steps have been taken to verify the contents of this article prior to publication. However, readers should not, and may not, rely on this article. Please consult with counsel to verify all contents and do not rely solely on this article in planning your legal transactions.
 See generally Meissner v. Yun, 2016 N.Y. Slip. Op. 30468(U) (Sup. Ct. N.Y. Cty. Mar. 17, 2016). Unless otherwise specified, all references to the case are to this citation.