THE AD2 CHECKED THIS PRIVILEGE
When he sought sole legal and physical custody of his three children, the husband sought to introduce text messages with his wife and her friend, C.M., who also happened to be an attorney.
In response, the wife made a motion to the Westchester County Supreme Court seeking to get those messages “returned or destroyed,” alleging that the communications were protected by the “attorney-client privilege.” And when that request was denied, an appeal followed.
Citing a New York State law which governs confidential communications with counsel, the Appellate Division, Second Department, noted that a “shield” applies when legal advice is secured “in the course of a professional relationship.” And to that end, the chief consideration is whether the communication was offered for the purpose of rendering “legal advice or services to the client.”
Given the absence of an attorney-client relationship with C.M., the AD2 thought the motion was properly denied, as no privilege applied, and the communications were thus unprotected and fully disclosable.
Was that an abuse of privilege?
# # #
DECISION