Journal of Law and Policy


Thomas O'Connor


As one surveys the vast and ever-changing landscape of law and litigation, few things stand out as so unanimously exalted and carefully guarded as the privilege protecting attorney-client communications. Yet there is today a surprising lack of uniformity and predictability in the reasoning by which New York courts determine whether a communication made by in-house counsel to its corporate client will – or will not – enjoy the protection of that privilege. Rather than follow a single and predictable analysis to resolve the question, New York courts have oscillated between one line of decisions focusing primarily on the purpose of the communication, and another in which the primary focus is on content. This variability has created a judicial landscape where privilege disputes virtually identical on the facts have entirely different outcomes. Exacerbating this problem is the large number of non-legal functions that today’s in-house counsel perform for their corporate clients. In the execution of these non-legal duties, in-house counsel often send communications that are a mix of legal and business advice and thus fall into a gray area of the law in regards to privilege. Without any statutory guidance to suggest otherwise, judges must then meticulously parse through the communications at issue and make a case-by-case determination as to whether the communication is mostly legal in nature, and thus business matters, and therefore freely discoverable by opposing counsel. Two simple solutions exist that can help restore order and predictability on this issue in New York. By adopting a unified method of analysis that includes consideration of both purpose and content, and by creating a signal that explicitly denotes privileged communication between in-house counsel and client, New York State courts can more accurately and efficiently adjudicate this issue, and bring some much needed uniformity and predictability to this area of the law.