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.)

‘Wrubleski’ Facts