The case is an important one for lawyers who are faced with an ethical issue. The New York Appellate Division held that the attorneys may communicate with their law firm’s general counsel to seek ethical advice and those communications are privileged and are not subject to discovery. In Stock, the lawyers were representing Stock in an arbitration hearing when one of the lawyers was called as a witness. The lawyers communicated with the firm’s general counsel and sought legal advice.
Stock later sued the law firm, claiming that the law firm gave negligence advice concerning his termination by MasterCard. In particular, Stock alleged that the firm failed to advise him that termination would accelerate the expiration of vested stock options.
In the lawsuit, Stock served discovery and sought disclosure of the communications between the lawyers who were representing him and the law firm’s general counsel. The court held that the attorney-client privilege applied and that the law firm was not required to disclose the communications.
The court also rejected his arguments that the fiduciary exception to the attorney-client privilege applied and or that the current client exception applied.
In sum, this is a thoughtful decision on this important issue. It will no doubt be cited by other courts and included in the professional responsibility casebooks.
Edward X. Clinton, Jr.