New York’s attorney-client privilege as codified at CPLR §4503(a) protects against disclosure of a “confidential communication made between the attorney or his or her employee and the client in the course of professional employment.” The privilege as codified can apply only to “communications” between the attorney and client that are “confidential.” See People v. Harris, 57 N.Y.2d 335, 342 (1982). If the purpose of the confidential communication is to aid the attorney in giving legal advice to his or her client, whether for purposes of avoiding or furthering litigation, assure compliance with legal requirements or to generally guide the client’s planned course of conduct, then the privilege in fact applies, unless there is an applicable exception. See Spectrum Sys. Intl. v. Chemical Bank, 78 N.Y.2d 371, 380 (1991). In other words, the privilege accords protection from disclosure only with respect to communications that are “primarily or predominantly of a legal character.” Rossi v. Blue Cross & Blue Shield of Greater N.Y., 73 N.Y.2d 588, 594 (1989). Thus, communications that relate solely to non-legal personal or business matters fall outside the privilege. See generally Barker and Alexander, Evidence in New York State and Federal Courts (2d ed) §5:6; Martin, Capra and Rossi, New York Evidence Handbook (2d ed) §5.2.4.
In Wrubleski v. Mary Imogene Basset Hosp., 163 A.D.3d 1248 (3d Dep’t 2018), the Appellate Division, Third Department, addressed the legal/non-legal distinction in the context of determining whether a client’s written notes made post-accident in which she set forth her account of how she was injured, the medical treatment she received for her injuries, and the medications she took during her post-operative care, could be viewed as a privileged confidential communication. At the time the notes were made and kept, she had retained an attorney to determine if she could recover damages for her injures. The Third Department, in a thoughtful opinion written by Justice John Egan Jr., held the attorney-client privilege attached to the notes insofar as they covered the client’s account of the accident and her injuries, but did not attach to her itemization of the medication she took. As the opinion is instructive, and provides important “takeaways” for attorneys, it will be the focus of this column. (In the interests of full disclosure, I represented the plaintiff-appellant in Wrubleski.)
Maryellen Wrubleski (decedent) was injured on Nov. 27, 2013 when she fell while running at a health club. She presented that day to Mary Imogene Basset Hospital with complaints of pain in both of her legs, including cramping in her hamstrings. Pain medications were prescribed and decedent was discharged. A week later, on Dec. 4, 2013, decedent treated with an orthopedic surgeon. Diagnosed with a significant tear of her hamstring, she underwent surgery on an outpatient basis a few days later to repair the tear. Wrubleski, 163 A.D.3d at 1249.
On Dec. 13, 2013, decedent and her husband retained an attorney to represent them in a lawsuit pertaining to decedent’s injuries. The attorney instructed decedent to provide him with a summary of the events which led to her injures, including an account of the health club fall, the initial failure to identify the injures to her hamstring, and to create an “injury journal” of the medical care and treatment for her injuries. The attorney also instructed decedent to write at the beginning of the journal “to my lawyer” to clearly designate that the journal is a confidential document protected by the attorney-client privilege. Id.
Decedent died suddenly on Dec. 21, 2013. The cause of death was a pulmonary embolism. Decedent’s death prompted her husband, as the plaintiff-administrator of decedent’s estate, to commence a wrongful death and medical malpractice action against the hospital and the orthopedic surgeon. Id.
During his deposition, plaintiff disclosed that decedent had kept a “journal” as she was requested to do so by her attorney; and that the “journal” had been turned over to him. When plaintiff refused to produce the journal for defendants’ review, defendants made a motion to compel. Plaintiff opposed the motion, arguing the journal notes made by decedent were protected against disclosure as they constituted a privileged confidential communication. Id.
Supreme Court Justice Jeffrey Tait requested the journal be submitted to him for an in camera review. Id. (As recognized by Justice Tait, an in camera review of the communications claimed to be privileged is generally appropriate to determine whether the privilege in fact attaches to the communication. See Spectrum Sys., 78 N.Y.2d at 378.) Upon his review, Justice Tait described their contents. Decision and Order (Tait, J.), entered May 15, 2017 (Otsego County Index No. 2014-0904). The journal consisted of six pages, four separate sheets of paper with two of the sheets containing entries on both sides. The entries therein were made at different times over the course of several days. Specifically, the front of page 1 contained notations of the advice and directives decedent received from her attorney; the back of page 1 contained personal notes and a Christmas “to do” list; the front of page 2 had the heading “to my lawyer” and “Injury Journal,” and the entries consisted of a chronology of the events starting from her visit to the health club and subsequent medical treatment, and ended on the front of page 3 with the last reference to an event that occurred on Dec. 2, 2013; the back of page 3 contained three notations, none of which were related to decedent’s legal representation; the front of page 4 contained a listing of medications and dates and times, with the first made on December 11th and the last on December 14th ; and the back of page 4 contained decedent’s attorney’s telephone number, and as well a time and name with no date.
Judicial Rulings and Decisions
Supreme Court initially denied defendant’s motion to compel. It found: (1) as to page 1, the front of the page was privileged as it consisted of decedent’s notes of the advice and directives given to her by her attorney, but the back of that page contained non-privileged matters unrelated to the action; (2) as to the front and back of page 2 and the front of page 3, the information contained therein was privileged, and that the back of page 3 contained non-privileged matters unrelated to the action; and (3) as to page 4 to the extent it contained notations of medications taken, while privileged, the medications could only be disclosed upon a demonstration of a substantial need for the documents or undue hardship. Id.
Defendants thereafter moved to renew and/or reargue, contending, among other things, that they had a substantial need for the medication log to determine whether decedent complied with postoperative instructions to take medication for anticoagulation therapy. Supreme Court granted the motion and directed disclosure of the page containing the medication log, concluding that the attorney-client privilege did not shield that document from disclosure. Id. at 1249-1250. In essence, Supreme Court concluded that the notes kept by decedent after her meeting with her attorney consisted of two separate communications, one being a narrative of the events leading to decedent’s injures, an “injury journal,” which was privileged, and the other a “medication log,” which was not privileged.
The Third Department affirmed Justice Tait’s rulings. In affirming, Justice Egan stated: “[W]e conclude that they [the notes] are a mixed collection, some of which are shielded by the attorney-client privilege and some which are not. The three-page portion labeled ‘injury journal’ is, as described by decedent’s attorney, a seamless report of the incident at the health club and the medical care that decedent received shortly thereafter. The medication log is on a separate page and includes other notes of a personal nature … [and] was made for the purpose of keeping a medical record rather than as a confidential communication made for the purpose of legal services.” Wrubleski, 163 A.D.3d at 1251.
Justice Egan, in writing for the court, built upon Justice Tait’s findings and rulings. The resulting opinion has several significant “takeaways.”
First Takeaway. The court clearly recognized that the attorney-client privilege may attach to a client’s written or oral account of the client’s experience in an accident, subsequent medical treatment, and post-accident life, provided the account was made so that the attorney could properly evaluate whether to pursue litigation and as well for the attorney’s future use in any litigation commenced as a result of the accident. Id. at 1251. (The fact that an action against a specific defendant(s) was not pending or relatively imminent at the time the account was made does not preclude invocation of the privilege. See, e.g., Root v. Wright, 84 N.Y. 72, 76 (1881).) Where the attorney directs the preparation of the account, as occurred with respect to decedent’s injury journal, the account is in fact privileged. Id. The court’s opinion also indicates that where the client on his or her own has made such notes in order to facilitate the obtaining of legal representation, such account would be privileged as well. (The federal courts have so held. See, e.g., United States v. DeFonte, 441 F.3d 92, 96 (2d Cir. 2006).)
Second Takeaway. To ensure that a client’s account will be protected by the privilege, the creation of the account should be requested by the attorney, and each request should be noted on the account prepared by the client. Thus, the court expressed its approval of Justice Tait’s finding that the decedent’s injury journal was privileged as it had at the top of the page the notation “to my lawyer,” as requested by the decedent. Id. at 1249. Such a request as followed by the decedent showed the purpose of the account was for the attorney’s use in representing decedent.
Third Takeaway. The court provided guidance for determining whether a client’s notes made post-accident, which are not specifically requested by the attorney, may nonetheless be privileged as made for purposes of legal advice. This guidance can be gleaned from the court’s finding that decedent’s medication log was not protected by the privilege, as evidenced by the circumstances surrounding its creation. Notably, the court did not make such finding merely because decedent on her own initiative prepared the medication log, a conclusion which, as noted above, would not be appropriate. Rather, the court reached such conclusion because plaintiff failed to meet his burden of showing that the medication log was “predominately of a legal character.” Rossi, 73 N.Y.2d at 594.
In this regard, the court pointed to the fact that, in addition to the attorney not specifically asking decedent to prepare it, the medication log was on a separate page, separate and apart from the three-page part of her notes labeled “injury journal;” included notes of a personal nature; and that decedent, who was a nurse, kept the log to ensure she was following her post-operative medication regime. Id. at 1251-52. To be sure, the log was part of the notes decedent prepared and kept and, so viewed, could have been found to be privileged as part of a unified package of notes for the attorney. However, the court was of the view that each part of the notes should be viewed separately, an approach which is consistent with the court of Appeals admonition, as expressed in Ambac Assur. v. Countrywide Home Loans, 27 N.Y.3d 616, 624 (2016), that the privilege is “strictly confined within the narrowest possible limits consistent with the logic of its principle.”
Fourth Takeaway. The court’s opinion also reaffirms two basic aspects of the attorney-client privilege that must be kept in mind when disclosure of a claimed privileged communication is sought. Where the communication is a document prepared by the client before there was any need for legal representation, the document is not protected by the privilege, even if the document is subsequently given to an attorney by the client when retained. See Alexander and Barker, supra at §5:5, p. 288. And, while the client and attorney cannot be compelled to testify that a specified fact was communicated to the attorney by the client, the client and attorney may be examined about how they know about that fact as the privilege attaches not to the “fact” but to the “communication” of that fact. Spectrum Sys., 78 N.Y.2d at 378 (“The privilege is, of course, limited to communications not underlying facts.”).
Fifth Takeaway. The court indicated that when notes prepared by a client are not protected by the privilege, an alternative means of protection against disclosure might be available, namely, the subject notes constitute material prepared in anticipation of litigation pursuant to CPLR 3101(d)(2). Wrubleski, 163 A.D.3d at 1252. (Plaintiff did not pursue this argument on appeal for the reasons specified by the court.) However, the privilege provided by this CPLR provision only attaches to the subject material if it was prepared in anticipation of the instant litigation, and even if it were, disclosure could nonetheless be directed if the party seeking disclosure could establish the requisite need for the material. The court noted these two requirements could not be met with respect to the medication log. Id.
In sum, Wrubleski is a significant decision with practical implications for the bar. It is deserving of a careful reading.
Michael J. Hutter is a Professor of Law at Albany Law School and is Special Counsel to Powers & Santola. He is currently serving as the Reporter to the Guide to NY Evidence. The Guide is accessible to the bench and bar at www.courts.state.ny.us/JUDGES/evidence.