On February 4, 2022, Justice Cohen of the New York County Commercial Division issued a decision in Berman v. Holland & Knight LLP, 2022 NY Slip Op. 30402(U), holding that an interrogatory seeking the identity of clients to whom a law firm gave certain advice improperly sought privileged information, explaining:
At issue here is Plaintiffs’ Interrogatory No. 2, which requests that Defendant “[i]dentify all persons to whom you provided any advice or services, including legal services, in connection with Derivium and/or any Derivium Transaction, and for each state the date and nature of such advice or services”. Plaintiffs define the term “identify” to require disclosure of:
a. [The client’s] full name;
b. Present or last known and business address;
c. Present or last known occupation, position, business affiliation, title and job description; and
d. His or her occupation, position, business affiliation, title and job description at the time relevant to the Interrogatory to which the response is propounded.
Defendant objected to the interrogatory on grounds of privilege and relevance. Plaintiffs now move to compel disclosure. For the reasons set forth below, Plaintiffs’ motion is denied.
Privileged matter shall not be obtainable in discovery. The attorney-client privilege exists to ensure that one seeking legal advice will be able to confide fully and freely in his attorney, secure in the knowledge that his confidences will not later be exposed to public view to his embarrassment or legal detriment. Because the attorney-client privilege constitutes an obstacle to the truth-finding process, however, its invocation should be cautiously observed to ensure that its application is consistent with its purpose. Application of the privilege depends on the circumstance of each case.
Under the circumstances here, disclosing the information sought by Interrogatory No. 2 would invade the attorney-client privilege. Absent other circumstances, the attorney-client privilege insulates a client’s identity from disclosure where, as here, the latter is not a party to a pending litigation.
Interrogatory No. 2 seeks more than just the identities of Holland & Knight clients; it seeks the identities of a sub-set of clients, based on whether those clients received certain advice from the firm. Revealing the identities of clients Holland & Knight advised about Derivium, as well as the nature of such advice, would disclose the substance of privileged requests for legal advice. Worse, it does so without giving the client the opportunity to assert the privilege. As an end-run around the protections of the privilege, Interrogatory No. 2 is invalid.
The First Department’s decision in Nab-Tern-Betts v City of New York, 209 AD2d 223, is not to the contrary. In Nab-Tern-Betts, the court ruled that the defendant had failed to meet its burden of establishing the attorney-client privilege over certain documents for which the defendant had neglected, inter alia, to identify the affiliations of and the relationships between the parties. The problem here, by contrast, is that Defendant cannot fully respond to Interrogatory No. 2 without disclosing the names of clients or former clients, because the Interrogatory asks for the identities of persons to whom the law firm provided advice or services, including legal services.
What’s more, giving out the client’s name would serve no necessary purpose but on the contrary would make public the very facts to which the client desired and was entitled to secrecy. Context is important here. A client who, like the Bermans, sought advice from Holland & Knight about the legality of the Derivium tax shelter 20 years ago presumably did so with the expectation of confidentiality. And the confidentiality interest enshrined in the attorney-client privilege would mean very little if the attorney could later divulge, without the client’s consent, the subject of the advice as part of a lawsuit in which the client is not even involved.
It is true that notwithstanding the absence of a pending litigation to which an attorney’s client is a party, disclosure may also be compelled where an attorney’s assertion of the privilege is a cover for co-operation in wrongdoing. But that exception does not apply here. In Matter of Jacqueline F., the Court ordered an attorney to disclose the whereabouts of his client because the client was suspected of hiding in Puerto Rico to evade a child custody decree in New York. Here, by contrast, Defendant’s clients or former clients are the alleged victims, not the alleged wrongdoers. And Plaintiffs do not allege any ongoing or impending wrongdoing that disclosure would help protect against. Withholding the personal information sought by Interrogatory No. 2, therefore, does not amount to co-operation in wrongdoing.
(Internal quotations and citations omitted).