| Parnes v Parnes |
| 2011 NY Slip Op 00136 [80 AD3d 948] |
| January 13, 2011 |
| Appellate Division, Third Department |
| Linda L. Parnes, Appellant, v Steven M. Parnes, Respondent. PaulVan Ryn, Respondent. |
—[*1] Maynard, O'Connor, Smith & Catalinotto, L.L.P., Albany (Stephen C. Prudente of counsel),for Steven M. Parnes, respondent. Maxwell & Van Ryn, Delmar (Paul Van Ryn of counsel), for Paul Van Ryn, respondent prose.
McCarthy, J. Appeal from an order of the Supreme Court (Zwack, J.), entered April 13, 2010in Rensselaer County, which, among other things, granted defendant's motion to, among otherthings, disqualify plaintiff's counsel.
When the parties began experiencing marital difficulties, defendant contacted Paul Van Ryn,an attorney who had represented him in a prior divorce and related proceedings (see Parnes v Parnes, 41 AD3d 934[2007]). Van Ryn had also represented and dealt with both parties in their capacities as principalsin a limited liability company. Defendant and Van Ryn exchanged e-mails discussing a strategyfor defendant to gain advantage in future matrimonial and custody litigation. Defendant acted inresponse to some of these e-mails, including sending a letter to plaintiff's physician stating thatdefendant—also a physician—disagreed with certain medication being prescribedand would no longer pay for this treatment, which was considered medically unnecessary asevidenced by an insurance company's refusal to cover the medication.[*2]
Plaintiff commenced this divorce action. At defendant'sdeposition, plaintiff's trial counsel questioned defendant about his e-mails with Van Ryn.Plaintiff apparently discovered a page of one of the e-mails on defendant's desk and, whilesearching for the remainder of the letter, discovered the user name and password for defendant'se-mail account. She used the password to gain access to defendant's account, printed the e-mailsbetween him and Van Ryn, and turned them over to her counsel. Plaintiff then amended thecomplaint to reflect that defendant conspired with Van Ryn to cause plaintiff anguish. Counselsubpoenaed Van Ryn for a deposition and to produce documents.
Van Ryn moved to quash the subpoena. Defendant cross-moved to, among other things,quash the subpoena of Van Ryn, preclude plaintiff from using any privileged communicationsbetween defendant and Van Ryn, strike the portions of the amended complaint based onprivileged information and disqualify plaintiff's counsel. Supreme Court found that the e-mailsbetween Van Ryn and defendant were protected by the attorney-client privilege, prohibitedplaintiff from using those documents or any information gleaned from them, struck the offendingparagraphs of the amended complaint, quashed the subpoena issued to Van Ryn[FN1]and disqualified plaintiff's counsel. Plaintiff appeals.
Supreme Court correctly determined that the e-mails were privileged. Initially, a trial courthas considerable discretion to supervise the discovery process, and we will not disturb itsdeterminations absent an abuse of that discretion (see Superintendent of Ins. of State of N.Y. v Chase Manhattan Bank, 43AD3d 514, 516 [2007]). Defendant met his burden of demonstrating that he and Van Ryncommunicated as an attorney and client and "that the information sought to be protected fromdisclosure was a 'confidential communication' made to the attorney for the purpose of obtaininglegal advice or services" (Matter of Priest v Hennessy, 51 NY2d 62, 69 [1980];see CPLR 4503 [a]; Clark vSchuylerville Cent. School Dist., 57 AD3d 1145, 1146 [2008]). Defendant averred that,while he had been friends with Van Ryn for many years, he contacted Van Ryn in his capacity asan attorney to seek advice about a potential divorce and custody battle. The context of the e-mailsshows that Van Ryn was giving legal advice, sent from his law firm e-mail address, and billeddefendant for his time. Van Ryn provided defendant with a retainer agreement; although theynever executed it, Van Ryn averred that he did not require an executed agreement from clientsuntil the matter proceeded to litigation or negotiations, and clients frequently sought advicebefore those stages without an executed retainer agreement.
Despite the e-mails being privileged, defendant waived the privilege with respect to one pageof one e-mail. As the proponent of the privilege, defendant bore the burden of proving that he didnot waive it (see Oakwood Realty Corp.v HRH Constr. Corp., 51 AD3d 747, 749 [2008]). Plaintiff averred that she discovered asingle printed page of a five-page e-mail on a desk in the marital residence. The partiesacknowledge that this desk was located in a room used as an office and the parties, their nannyand babysitters all used that room. Defendant contends that the desk contained only his papersand plaintiff had her own desk in the same room, but plaintiff appears to disagree. Regardless ofwhether the parties had separate desks, by leaving a hard copy of part of a document on the deskin a room used by multiple people, defendant failed to prove [*3]that he took reasonable steps to maintain the confidentiality of thatpage (see Bower v Weisman, 669 F Supp 602, 605 [SD NY 1987]; compare In reMarriage of Amich and Adiutori, 192 P3d 422, 424-425 [Colo App 2007]). Hence,defendant waived the privilege as to that one page, and plaintiff may use that single page inlitigation.
On the other hand, defendant took reasonable steps to keep the e-mails on his computerconfidential. Defendant set up a new e-mail account and only checked it from his workplacecomputer. Leaving a note containing his user name and password on the desk in the parties'common office in the shared home was careless, but it did not constitute a waiver of theprivilege. Defendant still maintained a reasonable expectation that no one would find the noteand enter that information into the computer in a deliberate attempt to open, read and print hispassword-protected documents (see Pure Power Boot Camp v Warrior Fitness BootCamp, 587 F Supp 2d 548, 560-562 [SD NY 2008]). Plaintiff admits that after she found theone page, she searched through defendant's papers in an effort to find the rest of the document,instead found the note, then purposely used the password to gain access to defendant's privatee-mail account, without his permission, to uncover the remainder of the e-mail. Under thecircumstances, defendant did not waive the privilege as to the e-mails in his private e-mailaccount (see Leor Exploration & Prod., LLC v Aguiar, 2010 WL 2605087, *18, 2010 USDist LEXIS 76036, *63-65 [SD Fla 2010]; cf. Stengart v Loving Care Agency, Inc., 201NJ 300, 321-324, 990 A2d 650, 663-665 [2010]).
We reject plaintiff's argument that the crime-fraud exception precludes confidentiality. Theattorney-client privilege will not prevent disclosure or use of any communications made "infurtherance of a fraudulent scheme, an alleged breach of fiduciary duty or an accusation of someother wrongful conduct" (Ulico Cas. Co.v Wilson, Elser, Moskowitz, Edelman & Dicker, 1 AD3d 223, 224 [2003]; seeSuperintendent of Ins. of State of N.Y. v Chase Manhattan Bank, 43 AD3d at 516).Defendant's letter to plaintiff's physician did not constitute a fraud upon plaintiff or the physician.Defendant expressed his personal opinion that plaintiff should not be taking human growthhormones, an opinion supported by the insurance company's refusal to cover that treatment.Defendant also informed the physician that defendant would no longer pay for this treatment.While plaintiff contends that defendant had evil motives for sending this letter and providing hera copy—namely to deprive her of necessary medicine and cause her mentalanguish—defendant's actions did not constitute a fraud regardless of his intentions. Thealleged breach of fiduciary duty must be on the part of the client, rather than the attorney (seeWoodson v American Tr. Ins. Co., 280 AD2d 328, 328-329 [2001]).[FN2]Based on the insurance company's refusal, presumably due to its determination that the treatmentwas not medically necessary, Supreme Court did not err in finding that defendant, as plaintiff'sformer physician, did not breach a fiduciary duty to her by sending the letter. Although shedescribes the strategy discussed by defendant and Van Ryn as an attempt to make her "snap,"defendant was not doing [*4]so by breaching a fiduciary duty.Plaintiff offers only speculation that defendant conspired to commit the crime of assault uponher, without any probable cause to support her assertion (compare Superintendent of Ins. ofState of N.Y. v Chase Manhattan Bank, 43 AD3d at 516). Although case law also applies thecrime-fraud exception to "other wrongful conduct," such conduct must usually be of a criminal ordubious nature, not merely mean or dishonorable (see e.g. Surgical Design Corp. vCorrea, 284 AD2d 528, 529 [2001]).
Supreme Court should not have disqualified plaintiff's counsel. When considering a motionto disqualify counsel, the court must consider the totality of the circumstances and carefullybalance the right of a party to be represented by counsel of his or her choosing against the otherparty's right to be free from possible prejudice due to the questioned representation (seeMatter of Schachenmayr v Town of N. Elba Bd. of Assessors, 221 AD2d 884, 885-886[1995]; Demis v Demis, 168 AD2d 840, 841 [1990], lv dismissed 78 NY2d 1007[1991]). The right to representation by counsel of one's own choosing is not absolute and may beoverridden, but courts must "carefully scrutinize[ ]" any restriction of that valuable right (S &S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 443 [1987]; see Matter of Advent Assoc., LLC v VogtFamily Inv. Partners, L.P., 56 AD3d 1023, 1024 [2008]). We have already determinedthat the e-mails between defendant and Van Ryn were privileged communications, and wecertainly do not condone the failure of plaintiff's counsel to promptly notify defendant's counselthat she had obtained the e-mails or her tactic of surprising defendant at his deposition byquestioning him regarding those privileged documents. On the other hand, contrary to SupremeCourt, we have determined that the privilege was waived as to part of one document, meaningthat counsel was able to properly ask defendant some of the questions posed at his deposition.Although a substantial right of defendant was prejudiced by plaintiff's uncovering of and hercounsel's use of the privileged documents, the less severe sanction of suppression of the e-mailsis a sufficient remedy for the problem (see CPLR 3103 [c]), and also protects plaintiff'svaluable right to counsel of her choosing (see Surgical Design Corp. v Correa, 21 AD3d 409, 410 [2005]).Considering all of the circumstances here, we find that Supreme Court abused its discretion inimposing the harsh sanction of disqualification of plaintiff's counsel in addition to suppressingthe confidential e-mails (see id.; compare Matter of Carey v Carey, 13 AD3d 1011, 1012 [2004]; Campolongo v Campolongo, 2 AD3d476, 476-477 [2003]).
Supreme Court properly quashed the subpoena of Van Ryn. The privileged documents andtestimony about attorney-client conversations were clearly not discoverable through a subpoena.To obtain disclosure from a nonparty, plaintiff was required to demonstrate a showing of specialcircumstances, namely that the information sought "is material and necessary and cannot bediscovered from other sources or otherwise is necessary to prepare for trial" (King v StateFarm Mut. Auto. Ins. Co., 198 AD2d 748, 748 [1993]; see Cerasaro v Cerasaro, 9 AD3d 663, 665 [2004]). Van Rynaverred that certain demanded documents, such as executed retainer agreements, do not exist.Some of the demanded documents have already been provided. Most of the documents soughtwere presumably available from defendant, defeating plaintiff's need for disclosure from anonparty. Although plaintiff made broad claims that this subpoena was required becausedisclosure from defendant has not been forthcoming, the record does not indicate that she hasmade any motions to compel his compliance with demands (see CPLR 3124), anddefendant indicated a willingness to produce demanded documents. Under the circumstances,Supreme Court appropriately quashed the subpoena (see Sand v Chapin, 246 AD2d 876,877 [1998]).
Plaintiff's remaining contentions have been reviewed and are unpersuasive.[*5]
Mercure, J.P., Malone Jr. and Stein, JJ., concur. Orderedthat the order is modified, on the law, without costs, by reversing so much thereof as disqualifiedplaintiff's counsel and found that the third page of a five-page e-mail from Paul Van Ryn todefendant is privileged, and, as so modified, affirmed.
Footnote 1: Supreme Court required VanRyn to comply with one paragraph of the subpoena. That paragraph is not at issue on appeal.
Footnote 2: In any event, although Van Rynrepresented plaintiff and defendant in their capacities as principals of a limited liability company,Van Ryn never represented plaintiff individually. While there may have been a conflict ofinterest due to the prior joint representation, no confidential information was gleaned fromplaintiff that was used against her so as to constitute a breach of the attorney's fiduciary duty toher.