New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
Commercial Litigation and Arbitration
« Back to Complex Lit Blog

Attorney-Client Privilege — Retainer Agreements Are Not Privileged unless They Reveal a Confidential Communication of Legal Advice, Nor Are They Protected as Work Product

Download PDF

In re MI Windows & Doors, Inc., Prod. Liab. Litig., MDL No. 2333, Case No. 2:12-mn-00001 (D.S.C. June 12, 2013) (Capra, Special Master):

This is a class action retainer agreement signed by Wani. Retainer agreements are not privileged, however, unless they reveal a confidential communication of legal advice — the identity of the client, the fee arrangement, and the fact of retention are not privileged because they only involve the incidents of representation. See In re Grand Jury Subpoena, 204 F.3d 516 (4th Cir. 2000) (retainer agreement not protected by the privilege). See also Lawfinders Associates, Inc. v. Legal Research Center, Inc. 193 F.3d 517, 518 (5th Cir. 1999) (“the attorney-client privilege does not protect the type of information contained in the retainer letters. See, e.g., United States v. Davis, 636 F.2d 1028, 1043-44 (5th Cir. Unit A Feb. 1981) (stating that attorney-client privilege only extends to communications related to the rendition of legal advice and holding that ‘[f]inancial transactions between the attorney and client ... are not within the privilege’)”); Bowman v. Green Tree Servicing, Inc., 2012 WL 4849616, at *3 (N.D. W. Va.)(“[T]he retention agreement between Plaintiff and her counsel is not privileged. The authority is unanimous for the proposition that ‘in the absence of unusual circumstances, the fact of a retainer, the identity of the client, the conditions of employment and the amount of the fee do not come within the privilege of the attorney-client relationship.’ In re Semel, 411 F.2d 195, 197 (3d. Cir.1969); see also NLRB v. Harvey, 349 F.2d 900, 904–05 (4th Cir.1965); United States v. Pape, 144 F.2d 778, 782–783 (2 Cir.1944); Wirtz v. Fowler, 372 F.2d 315, 332–333 (5th Cir.1966); In re Wasserman, 198 F.Supp. 564 (D.C.Cir.1961). The Court can find no unusual circumstances in this case to depart from this well established rule.”). Upon review of the retainer agreement, the Special Master does not see anything in it that reveals any confidential communication about the legal matter — as stated above, Wani’s motive for seeking representation is not a secret. In an excess of caution, the Special Master rules that if the Homeowner Plaintiffs want to claim privilege for any specific statement in the retainer agreement, they have leave to do so. But the broad-brushed claim of privilege must be denied.

The Homeowner Plaintiffs also rely on work product, but “[w]ith respect to the retainer agreement, courts have repeatedly held that attorney retainer agreements, just as with the attorney client privilege, are not protected by the work product doctrine.” Id. See e.g., Mordesovitch v. Westfield Ins. Co., 244 F.Supp.2d 636 (S.D.W.V.2003); Stanley v. Bayer Healthcare LLC, 2011 WL 5569761 (S.D. Ca. Nov. 16, 2011); Fransen v. One World Tech. Co., 2010 WL 5069490 (D.N.J. Dec. 6, 2010); Monroe's Estate v. Bottle Rock Power Corp., 2004 WL 737463 (E.D.La. Apr. 2, 2004); Thompson v. Cincinnati Ins. Co., 2010 WL 4667100 (N.D.Fl. Nov. 9, 2010). The Special Master sees no reason to depart from the overwhelming authority on this subject.

Share this article:

Facebook
Twitter
LinkedIn
Email

Recent Posts

(1) FRAP 38 Sanctions Inapt for Appeal That Is Weak — “Borderline Frivolous” — Test Is Whether Appellant Should Have Known the Appeal Had Absolutely No Chance of Success — (2) Lay Opinion Testimony under Rule 701: Nub of Helpfulness Requirement Is to Exclude Testimony When the Witness Is No Better Suited Than the Jury to Assess the Issue; (3) Appeals: No Appeal from Denial of Motion for Judgment As a Matter of Law Unless Appellant Made That Motion Before Case Was Submitted to Jury

(1) § 1927 and Inherent Power Sanctions — Extrajudicial Misconduct After Obtaining Verdict: Filing Lis Pendens Based on False Statements and in Violation of Governing Law, Filing Fraudulent Abstracts of Judgment That Represented They Had Been Court-Issued; (2) Rule 37 Sanctions for Baseless Motion to Compel Required Unless Target Shows That the Motion Was Substantially Justified Or Other Circumstances Make An Award Of Expenses Unjust

Rule 37 Dismissal Factors (10th Circuit) — Rule 37(d) Sanctions Apply Without Regard to Whether the Court Has Ordered the Delinquent Party to Appear for His, Her or Their Deposition

Rule 37 Dismissal Factors (Sixth Circuit) — Refusal to Answer Deposition Questions on Relevancy Grounds Is Not Valid Rule 30(c)(2) — Pro Se Deponent’s Attendance At Zoom Deposition While Driving A Semi, Refusing to Answer Questions, Inter Alia, Held Contumacious

Rule 26(a)(1) Disclosures and Rule 37 Preclusion: Rule 26 Does Not Require Disclosure of Legal Theories Underlying Damages Computations Provided Pursuant to 26(a)(1)(A)(i)

Rule 37 Sanctions: (1) Forfeiture of Objections to Produce Specific Categories of Documents (Including Tax Returns, Social Media Passwords) as Sanction for Violation of Discovery Order — (2) Default Judgment for Multiple Violations of Discovery Orders — (3) Ninth Circuit’s 5-Factor Test for Dismissal or Default Sanction — (4) Three Additional Factors Considered by Court of Appeals in Assessing Whether Lesser Sanctions Were Adequately Considered — (5) District Court Need Not Recite Each Factor: It Suffices If Record Permits Appellate Court to Apply Them — (6) Public Policy Favoring Disposition of Cases on the Merits Is Not Dispositive Where At Least 4 Factors “Support,” Or 3 Factors “Strongly Support,” Dismissal/Default — (7) And Lends Little Support to A Party Whose Conduct Impedes Adjudication on the Merits — (7) Order to Show Cause Why FRAP 38, § 1927 and Inherent Power Sanctions Should Not Issue for Multiple Misstatements Of Counsel At Oral Argument

Electronic Spoliation Sanctions: “Intent to Deprive” in Rule 37(e)(2) Means Willful Destruction of Evidence to Avoid Its Discovery by an Adverse Party — Relevant Circumstantial Evidence in Determining “Intent to Deprive” — Rule 37(e)(2)(C)’s Standards Trump Circuit’s Multi-Factor Test for Determining Whether Dismissal Is Appropriate — No Prejudice Required for 37(e)(2) Sanctions Because Intent to Deprive Creates Inference the Loss of Information Favored the Spoliator

Sanctions and Appealability — Fifth Circuit’s 2023 Survey of Circuit Cases Concerning Whether Judgment of Dismissal As a Sanction Bars Review of Earlier Sanctions Orders Due to Lack of Jurisdiction or Whether The Decision to Review Pre-Dismissal Sanctions Orders Is Prudential

Sanctions and Appealability — Prior Sanctions Orders Do Not Merge into Judgment of Dismissal Imposed As Sanction under Rules 16(f), 37(b) and 41(b) and Are Unappealable — Courts of Appeal Differ As to Whether This Lack of Reviewability Is Jurisdictional or Discretionary (Jurisdictional in Second Circuit)

Sanctions Enforcement and Appealability: Failure to Pay Rule 37 Sanctions and Otherwise Comply with Discovery Orders Leads to Dismissal under Rule 41(b) — Second Circuit Factors for Dismissal for Failure to Prosecute or Comply with Court Orders — Belated, Partial Compliance with Orders Does Not Deprive District Court of Discretion to Dismiss Based on Continuing Non-Compliance with Other Aspects of Orders — “Hopelessly Belated Compliance” with Court Orders Not Accorded Great Weight — Prior Sanctions Orders Do Not Merge into Judgment of Dismissal under Rule 41(b) And Are Unreviewable

Archives
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

New York Office

© 2024 Joseph Hage Aaronson LLC  
Disclaimer | Attorney Advertising Notice | Legal Notice