June 13, 2013
Arkin Kaplan Rice LLP, et al., Plaintiffs-Respondents,
Howard Kaplan, et al., Defendants-Appellants.
Kaplan Rice LLP, New York (Christopher J. Roche of counsel), for appellants.
Kasowitz, Benson, Torres & Friedman LLP, New York (Joseph A. Piesco, Jr., of counsel), for respondents.
Tom, J.P., Friedman, Freedman, Feinman, JJ.
Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered on or about January 28, 2013, which, among other things, referred to a judicial hearing officer the issue of whether plaintiff Lisa Solbakken was entitled to certain disclosure, unanimously affirmed, without costs.
Supreme Court providently exercised its discretion by directing defendants' counsel, Ciampi, LLC, to submit certain communications in plaintiff Lisa Solbakken's legal file for an in camera review and referring resolution of the discovery issue to a judicial hearing officer (see CDR Creances S.A.S. v Cohen, 77 A.D.3d 489, 491 [1st Dept 2010]; Veras Inv. Partners, LLC v Akin Gump Strauss Hauer & Feld LLP, 52 A.D.3d 370, 373 [1st Dept 2008]).
Although we only address the propriety of the in camera review, we note that communications between defendants Howard Kaplan, Michelle Rice, Solbakken, and Ciampi LLC, made during the course of Ciampi's joint representation of them, fall within the scope of the attorney-client privilege because Kaplan, Rice, Solbakken, shared "a common interest" (American Re-Insurance Co. v United States Fid. & Guar. Co., 40 A.D.3d 486, 490-491 [1st Dept 2007]; Finn v Morgan, 46 A.D.2d 229, 235 [4th Dept 1974]), and consulted Ciampi for their "mutual benefit" (Martin v Slifkin, 249 App Div 860 [2d Dept 1937]).
Those communications are not privileged within the context of Solbakken's adverse litigation against Kaplan and Rice (see Matter of McCormick, 287 A.D.2d 457 [2d Dept 2001]; Matter of Beiny [Weinberg], 129 A.D.2d 126, 139-140 [1st Dept 1987]; Goldberg v American Home Assur. Co., 80 A.D.2d 409, 413 [1st Dept 1981]; Matter of Friedman, 64 A.D.2d 70, 84 [2d Dept 1978]). However, those communications are privileged as against Solbakken's co-plaintiffs, who were not clients being jointly represented by Ciampi (see Wallace v Wallace, 216 NY 28, 35-36 ; Doheny v Lacy, 168 NY 213, 224 ; Hurlburt v Hurlburt, 128 NY 420, 424 ; Root v Wright, 84 NY 72 ; La Barge v La Barge, 284 App Div 996 [3d Dept 1954]; see also Restatement [Third] of Law Governing Lawyers § 75). "The privilege belongs to the client" and Solbakken cannot unilaterally waive it on defendants' behalf so as to benefit her coplaintiffs (People v Osorio, 75 N.Y.2d 80, 84 ; see CPLR 3101[b], 4503[a]; Matter of Vanderbilt [Rosner—Hickey], 57 N.Y.2d 66 ).