Yes, the attorney-client privilege is recognized in New York, and is codified by New York statutory law (New York Civil Practice Law and Rules (“C.P.L.R.”) 4503(a)(1)) as well as under New York common law.[1]

The attorney-client privilege protects communications where: 

a)    A professional relationship exists between an attorney and client; 
b)    The communication is intended to be confidential; and 
c)    The communication is made to obtain or convey legal advice or services.[2]  
The client holds the privilege and may waive it.[3] The party asserting the privilege has to show that the communication between the attorney and client was “predominantly of a legal character,” its confidential nature, and lack of waiver.[4] 

Notes:

[1] See Ambac Assurance Corp. v. Countryside Home Loans, Inc., 27 N.Y.3d 616, 623-24 (2016).  
[2] Id. 
[3] Id. 
[4] Id. 

Not applicable.

No, New York has not made a distinction in applying the attorney-client privilege and the work product doctrine in civil and criminal proceedings.

New York statutory law states that a client cannot be compelled to disclose privileged communication with his attorney in any action, disciplinary hearing or trial, or administrative action or proceeding conducted by a state, municipal, local governmental or legislative agency. 

While New York Rules of Professional Conduct do not mandate disclosure to the appropriate authorities, a “lawyer may reveal or use confidential information to the extent the lawyer reasonably believes necessary: 

1. to prevent reasonably certain death or substantial bodily harm;
2. to prevent the client from committing a crime;
3. to withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be relied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud;
4. to secure legal advice about compliance with [the New York Rules of Professional Conduct] or other law by the lawyer, another lawyer associated with the lawyer’s firm or the law firm;
5. (i) to defend the lawyer’s employees and associates against an accusation of wrongful conduct; or (ii) to establish or collect a fee; or
6. when permitted or required under [the New York Rules of Professional Conduct] or to comply with other law or court order.”[5]

Notes:

[5] New York Rules of Professional Conduct 1.6(b).
 

Corporations, as clients, may avail themselves of the attorney-client privilege for confidential communications with attorneys that relate to their legal matters.[6] The attorney-client privilege applies to communications with attorneys, whether those attorneys are corporate staff counsel or outside counsel.[7]

The inquiry as to whether a communication between staff counsel and a corporation’s employees is privileged is fact-specific.[8] The test to determine if the attorney-client privilege applies to such a communication is whether the communication was “made for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship.”[9]

Although a “confidence” or “secret” between a company and its staff counsel is generally privileged, a “lawyer shall not knowingly reveal confidential information . . . or use such information to the disadvantage of a client or for the advantage of the lawyer or a third person, unless:

1. The client gives informed consent, as defined in [New York Rule of Professional Conduct] 1.0(j); [or]
2. The disclosure is impliedly authorized to advance the best interests of the client and is either reasonable under the circumstances or customary in the professional community . . . .”[10]

Communications between an attorney and a client about the “substance of imminent litigation generally will fall into the area of legal rather than business or personal matters” and, therefore, will usually be considered privileged communications.[11]  As long as a communication between a company and its staff counsel is “predominantly of a legal character” the fact that the legal advice may refer to non-legal matters does not mean that the communication is not privileged. [12]

Lastly, the attorney-client privilege “may give way to strong public policy considerations. [13]

Notes:

[6] See Rossi v. Blue Cross & Blue Shield of Greater New York, 73 N.Y.2d 588, 591-92 (1989). 
[7] Id.; CPLR 4503. 
[8] Rossi, 73 N.Y.2d at 593. 
[9] Id.
[10] New York Rule of Professional Conduct 1.6(a)-(b).
[11]  Rossi, 73 N.Y.2d at 594.  
[12]  Id
[13]  Spectrum Systems International Corp. v. Chemical Bank, 78 N.Y.2d 371, 380 (1991).

In-house counsel are not subject to a higher burden than outside counsel in order to establish privilege with their clients.  The attorney-client privilege applies to communications with attorneys, whether those attorneys are corporate staff counsel or outside counsel. [14]

Notes:

[14] Rossi, 73 N.Y.2d at 591-92; see CPLR 4503. 

This question is not applicable because New York is not a civil law jurisdiction. 

This question is not applicable to New York. See above.

Yes, the common interest doctrine is recognized in New York. [15]

Notes:

[15] Ambac Assurance Corp., 27 N.Y.3d at 625

Common interest doctrine is treated as an exception to the general rule that communications shared with third parties are not privileged.[16] For the common interest doctrine to apply to communications between separately represented parties and their respective attorneys, the communications must be in furtherance of a common legal interest shared by the separate parties in pending or reasonably anticipated litigation.[17]

The common interest doctrine is distinct from joint representation (wherein multiple clients are represented by the same counsel), and applies despite the presence of a third separately-represented party. The common interest doctrine does not apply to communications unless the communications would be otherwise protected by the attorney-client privilege absent the disclosure.[18]  In other words, the doctrine only applies to attorney-client privileged communications that are disclosed to a third party that shares a “common interest.”[19]  Accordingly, the common interest doctrine does not protect business or personal communications, but only applies to communications regarding legal advice in pending or reasonably anticipated litigation, and among parties that share a common legal interest.[20]
  
No single member of a common interest arrangement may waive the privilege covering joint communications.[21]  Further, parties in a common interest arrangement may not assert the privilege against each other in a later dispute.[22]  New York courts apply the doctrine in criminal as well and civil matters, and to communications of both co-plaintiffs and co-defendants. [23]

Notes:

[16] Id. at n.1. 
[17] Id. at 625-26, 629-30. 
[18] Fewer v. GFI Group, Inc., 79 A.D.2d 412, 413 (1st Dep’t 2010). 
[19] Id.
[20] Fox Paine & Co., LLC v. Houston Casualty. Co., No. 52607/2014, 2016 WL 1602747, at *19 (N.Y. Sup. Ct. Apr. 21, 2016). 
[21] 21st Century Diamond, LLC v. Allfield Trading, LLC, 142 A.D.3d 913, 913-14 (1st Dep’t 2016) (holding that non-party cannot waive joint privilege on behalf of third-party defendants). 
[22] Levy v. Arbor Commercial Funding, LLC, 138 A.D.3d 561, 562 (1st Dep’t 2016). 
[23] Ambac Assurance Corp., 27 N.Y.3d at 625.

Although New York courts do not require that a common interest agreement be in writing,[24]  a party asserting the privilege bears the burden of showing that an agreement exists among the parties.[25]  The mere “impression of one side” that an agreement exists is not sufficient.[26] It is in the best interest of the parties to memorialize their agreement [27] in writing, and it is best practice for the agreement include the following terms:

1. The parties agree to maintain the attorney-client privilege under the common interest doctrine;
2. The parties do not waive the attorney-client privilege by sharing privileged information between themselves and their respective counsel;
3. The parties cannot waive the privilege unilaterally or on behalf of another;
4. The parties agree to not deem an inadvertent disclosure of the same as a waiver (subject to principles of New York law); and
5. The parties retain the power to waive privilege for communications that were not shared with the other parties to the agreement.

Notes:

 [24] Riverkeeper, Inc. v. Port Authority of New York and New Jersey, 111 N.Y.S.3d 523, 528 (N.Y. Sup. Ct. 2019) (“The party asserting the common interest rule bears the burden of showing that there was an agreement, though not necessarily in writing, embodying a cooperative and common enterprise towards an identical legal strategy.”) (quoting Denney v. Jenkins & Gilchrist, 362 F. Supp. 2d 407, 415 (S.D.N.Y. 2004)).  
[25] Id. 
[26] Id. (quoting Denney, 362 F. Supp. 2d at 415). 
[27] Id. (party asserting the privilege shared no other documentary evidence indicating that a common interest was established apart from a memorandum of understanding that the Court did not find persuasive because it did not state that communications should be privileged, protected or that the parties share a common interest in anticipated or pending litigation). 

New York Rule of Professional Conduct 1.8(f) allows for litigation funding in limited circumstances. A lawyer may accept compensation for representing a client from a non-client client if: 

1. The client consents; 
2. There is no interference with the lawyer’s independent professional judgment or with the client-lawyer relationship; and 
3. The client’s confidential information is protected under Rule of Professional Conduct 1.6.[28]

The funding arrangement must not violate Rule of Professional Conduct 5.4, which prohibits the sharing of legal fees with a non-lawyer. [29]

Notes:

[28] New York Rules of Professional Conduct 1.8(f). 
[29] Lawsuit Funding, LLC v. Lessoff, No. 650757/2012, 2013 WL 6409971, at *5-6 (N.Y Sup. Ct. Dec. 4, 2013).
 

New York courts have applied the common interest doctrine to determine if communications with litigation funders may be protected by the attorney-client privilege or the work product doctrine.[30]  The privilege extends to communications with litigation funders when: 

1. the litigation funder shares a common interest, in the form of a legal claim or defense against the adverse party, not just a common financial interest; or 
2. it is necessary to extend the privilege in order to facilitate the party’s communication with counsel (e.g., an interpreter) or otherwise serve a specialized purpose in connection with those communications.  [31]

If none of those requirements are met, otherwise privileged communications shared with the funder become discoverable. [32]

Notes:

[30] Cohen v. Cohen, No. 09-cv-10230, 2015 WL 745712, at *2-3 (S.D.N.Y. Jan. 30, 2015).
[31] Id. at *3. 
[32] See generally Fox Paine & Co., LLC, 2016 WL 1602747, at *19 (citing Cohen, 2015 WL 745712).   

Yes, the crime-fraud exception is recognized under the New York Rule of Professional Conduct 1.6(b) and New York common law.[33]

Notes:

[33]  People v. DePallo, 96 N.Y.2d 437, 441-42 (2001); Knopf v. Sanford, 65 Misc. 3d 463, 514 (N.Y. Sup. Ct. 2019). 

New York courts have held that the “intent to commit a crime is not a protected confidence or secret.”[34] In Knopf v. Sanford, the New York County Supreme Court stated that the attorney-client privilege does not extend to communications that may have been in furtherance or a fraudulent scheme, alleged breach of fiduciary duty [35] or an accusation of some other wrongful act. [36]

The party seeking to invoke the exception and overcome the privilege must set forth facts sufficient to show probable cause that the communications at issue were in furtherance of a fraud or crime, and that a fraud or crime had been committed.[37] The standard requires a prudent person to find a reasonable basis to suspect a wrongful act and that the communications were in furtherance of that act. [38] However, if the party seeks an in camera review of the communications by the Court, the party need only show “a factual basis adequate to support a good faith belief by a reasonable person that an in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies,” following which, the decision to conduct such a review is in the court’s discretion.[39] 

Notes:

C.P.L.R. 3101(c) protects an attorney’s work product from disclosure in legal proceedings and makes it absolutely immune from discovery.[40]

Notes:

[40] Venture v. Preferred Mutual Insurance Co., 153 A.D.3d 1155, 1158-59 (1st Dep’t 2017).

The party asserting protection under the work product doctrine bears the burden of establishing its propriety.[41] Mere assertion is not enough. Attorney work product protection applies to:

1. Documents prepared by counsel acting as such;
2. Documents prepared in anticipation of litigation;[42] and
3. Materials that are uniquely the product of a lawyer’s learning and professional skills, such as those reflecting his or her legal research, analysis, conclusions, legal theory or strategy.[43]

Work product privilege is generally not waived when the work product is inadvertently produced. [44] However, an exception to inadvertent production exists when the disclosing party’s conduct was so careless as to suggest that it was not concerned with the protection of the asserted privilege.[45]

Work product privilege is generally waived when the client uses it to refresh his recollection during testimony.[46]

No, a client’s communications with its accountants are not afforded special protections under New York law and are subject to full disclosure.[47] However, communications between a client and its accountant could be protected if those communications were made to improve the client’s comprehension of communications with their attorney.[48] If the communications are not made for such a purpose, then they are discoverable.

While there is no statutory or common law in New York recognizing mediation privilege, New York courts have varied approaches to finding whether a mediation privilege exists. Where the facts of the case establish that the parties had consented to disclosure, Courts have allowed for disclosure.[49] On the other hand, some New York courts have refused to direct the disclosure of documents in connection with mediation.[50]

Yes, New York imposes a generalized “settlement privilege” through C.P.L.R. 4547. Settlement offers and other efforts to reach settlements are inadmissible at trial as proof of liability. The privilege also extends to statements of fact made in the course of negotiation, unless offered for another purpose, such as proving bias or prejudice of a witness.[51] 

Notes:

[51] CPLR 4547 (also listing other bases for exclusion).