26.24 - 2. Other Exceptions To The Privilege
Jurisdiction | New York |
2. Other Exceptions to the Privilege
Some jurisdictions, including New York and the federal courts, have adopted the fiduciary exception3793 to the attorney-client privilege. This is also known as the Garner doctrine.3794 This exception allows shareholders to discover legal advice given to corporate leadership and usually comes up in an action for breach of fiduciary duty against a board of directors or other corporate officers. One New York court explained that the privilege:
does not attach at all when a trustee solicits and obtains legal advice concerning matters impacting upon the interests of the beneficiaries seeking disclosure, on the ground that a fiduciary has a duty of disclosure to the beneficiaries whom he is obligated to serve as to all of his actions, and cannot subordinate the interests of the beneficiaries, directly affected by the advice sought, to his own private interests under the guise of the privilege. 3795
The party seeking the information must show “good cause” why the privilege should not apply.3796 New York courts analyze the following factors in determining whether good cause exists to apply the exception:
There was an apparent identity of interests regarding disclosure among the beneficiaries of the trusts;
Plaintiffs may have been directly affected by any decision defendant made on his attorney’s advice;
The information sought was highly relevant to and may be the only evidence available on whether defendant’s actions respecting the relevant transactions and...
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- 26.0 - I. Introduction
- 26.1 - II. Background Of The Attorney-Client Privilege
- 26.2 - A. General Principles
- 26.3 - B. Attorney-Client Privilege And Rules Of Professional Responsibility
- 26.4 - C. Exceptions To The Attorney-Client Privilege
- 26.5 - 1. At Issue Waiver
- 26.6 - 2. Inadvertent Disclosure
- 26.7 - 3. Public Policy Exceptions
- 26.8 - 4. Crime-Fraud Exception
- 26.9 - D. The Privilege And Third Parties
- 26.10 - 1. Legal Staff
- 26.11 - 2. Other Professionals
- 26.12 - 3. Common Interest Doctrine
- 26.13 - III. Attorney-Client Privilege For Corporate In-House Counsel
- 26.14 - A. Overview
- 26.15 - B. Important Differences
- 26.16 - C. The Attorney-Client Privilege And The Upjohn Decision
- 26.17 - 1. Corporate Privilege Tests
- 26.18 - 2. Upjohn Decision
- 26.19 - 3. The Upjohn Warning
- 26.20 - 4. Upjohn And Practical Challenges
- 26.21 - 5. Upjohn And The States
- 26.22 - D. Attorney-Client Privilege And Attorney Directors
- 26.23 - 1. Requirement To Notify Board
- 26.24 - 2. Other Exceptions To The Privilege
- 26.25 - 3. Differentiation Of Roles Between Attorney And Director
- 26.26 - E. Duty To Report
- 26.27 - IV. The Attorney Work Product Doctrine
- 26.28 - A. Overview
- 26.29 - B. Policy Considerations
- 26.30 - C. Exceptions To Attorney Work Product
- 26.31 - 1. “In The Regular Course Of Business”
- 26.32 - 2. “Substantial Need”
- 26.33 - V. Conclusio
- Appendix
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