In May New York State’s highest court, the Court of Appeals, ruled in Hurrell-Harring v State of New York that a lawsuit against the state, claiming that indigent defendants in criminal court and family court do not get adequate representation, could go forward. New York State, represented by Attorney General Andrew Cuomo, then moved to have the attorney-client privilege waived for certain of the litigants in the case.
The state’s motion was denied in Supreme Court. Now the Appellate Court, Third Department has affirmed the lower court’s ruling.
In it’s decision concerning the attorney-client privilege, the Appellate Court said:
“…the only issue that remains to be addressed is raised in defendants’ appeal from the order denying the State’s request for a declaration that the attorney-client privilege has been waived by those individuals who submitted affidavits regarding the representation they had received from their assigned public defenders in the underlying criminal actions. “[A] waiver of the attorney-client privilege may be found ‘where the client places the subject matter of the privileged communication in issue . . . or where invasion of the privilege is required to determine the validity of the client’s claim or defense and application of the privilege would deprive the adversary of vital information'” (New York TRW Tit. Ins. v Wade’s Can. Inn & Cocktail Lounge, 225 AD2d 863, 864 , quoting Jakobleff v Cerrato, Sweeney & Cohn, 97 AD2d 834, 835  [citation omitted]; see Deutsche Bank Trust Co. of Ams. v Tri-Links Inv. Trust, 43 AD3d 56, 63-64 ). Here, 17 of the named plaintiffs submitted affidavits detailing their contacts with assigned counsel during the course of their prosecution to support their claim that the legal representation they received was constitutionally deficient. Given their entire content, we do not agree with defendants that these affidavits necessarily put in issue all communications between a plaintiff and their assigned counsel that would otherwise be privileged. This is especially true where the subject matter contained in the affidavit is not vital or entirely relevant to the claims raised in this litigation (see New York TRW Tit. Ins. v Wade’s Can. Inn & Cocktail Lounge, 225 AD2d at 864). In our view, Supreme Court providently exercised its discretion by concluding that any waiver of the privilege must be evaluated on an individual basis and only upon such an evaluation can it be determined if an individual plaintiff, by submission of his or her affidavit, has waived his or her right to assert the attorney-client privilege in this action.”
For more info: Read the entire decision by the Appellate Court.
Read an op-ed piece by Dan Weaver on Hurrell-Harring v State of New York.