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Michael J. Hutter

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.

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