Mayorga v. Tate

• Decision Date: 16 December 2002
• Citation: 302 A.D.2d 11,752 N.Y.S.2d 353
• Parties: REIANNE MAYORGA, Respondent,<BR>v.<BR>ROBERT TATE, Appellant.
• Court: New York Supreme Court — Appellate Division

302 A.D.2d 11

752 N.Y.S.2d 353

REIANNE MAYORGA, Respondent,

v.ROBERT TATE, Appellant.

December 16, 2002.

Pieper Hoban & Royce, P.C., Mineola (Stephen P. Hoban of counsel), for appellant.

Jeffrey Levitt, Amityville, for respondent.

SMITH, J.P., FRIEDMANN, ADAMS and TOWNES, JJ., concur.

OPINION OF THE COURT

Per Curiam.

We hold that, just as the attorney-client privilege itself survives the death of the client for whose benefit the privilege exists (see e.g. Matter of Riconda, 90 NY2d 733, 740; Matter of Matheson, 283 NY 44; Matter of Cunnion, 201 NY 123; People v Modzelewski, 203 AD2d 594; Downey v Owen, 98 App Div 411, 419; People v Vespucci, 192 Misc 2d 685; Matter of Weinberg, 133 Misc 2d 950, mod sub nom. Matter of Beiny, 129 AD2d 126; Randy Intl. v Automatic Compactor Corp., 97 Misc 2d 977), the right to waive that privilege in the interest of the deceased client's estate also survives, and may be exercised by the decedent's personal representative. Although a review of New York case law addressed to this issue reveals the existence of numerous unelaborated restatements of the erroneous proposition that "the power to waive the [attorney-client] privilege * * * end[s] with the death of the client" (Matter of Alexander, 205 Misc 894, 895; see Matter of Weinberg, supra; Matter of Trotta, 99 Misc 2d 278; In re Olson's Estate, 73 NYS2d 876; Matter of Williams, 179 Misc 805), such dicta are not binding as a matter of law, and are unpersuasive as a matter of logic. We agree with the statement of the authors of one treatise that "not allowing the personal representative to waive the privilege in an action in which the client would [have done so] if alive does not make much sense" (Martin, Capra, and Rossi, New York Evidence Handbook § 5.2.8, at 361-362).

The defendant in this case was the attorney for Mary J. Rerisi, and represented Ms. Rerisi in connection with a matrimonial action until Ms. Rerisi's death in 1993. It is alleged that the defendant committed legal malpractice during the course of that representation.

In 1995, the executor of Ms. Rerisi's estate assigned the estate's cause of action to recover damages for legal malpractice to the plaintiff, who is Ms. Rerisi's daughter, and the present action was commenced in 1996. The defendant opposed the plaintiff's efforts to obtain pretrial disclosure of the file that he maintained in connection with Ms. Rerisi's matrimonial action based on his assertion of the attorney-client privilege.

The Supreme Court held that the plaintiff, as the assignee of the executor of Ms. Rerisi's estate, effectively waived the attorney-client privilege, and that the defendant attorney could not invoke that privilege in order to avoid the requested discovery. We agree.

CPLR 4503 (a) (1) states, "Confidential communication privileged [nonjudicial proceedings]. Unless the client waives the privilege, an attorney * * * shall not disclose, or be allowed to disclose [any] communication [made between the attorney and the client in the course of professional employment] * * *, in any action, disciplinary trial or hearing, or administrative action, proceeding or hearing" (emphasis supplied).

CPLR 4503 (b) states that in certain proceedings, including contested probate proceedings, an attorney may be required to disclose information as to the preparation of a will, subject only to the limitation that he or she not reveal any communication that would "tend to disgrace the memory of the decedent" (CPLR 4503 [b]). This provision operates as an exception to the general rule, noted above, that the attorney-client privilege survives the client's death (see Matter of Weinberg, supra; Downey v Owen, supra at 419).

The attorney-client privilege existed at common law as early as the reign of Elizabeth I (see Barker and Alexander, Evidence in New York State and Federal Courts § 5:3, at 289 n 1). The Court of Appeals has held that New York's attorney-client privilege statute (CPLR 4503) is "a `mere re-enactment of the common-law rule'," and that, in order to determine the scope of the attorney-client privilege as it is currently constituted under the terms of CPLR 4503, "courts still must look to the common law" (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 377, quoting Hurlburt v Hurlburt, 128 NY 420, 424; see Charter One Bank v Midtown Rochester, 191 Misc 2d 154, 165 n 10; Matter of Colby, 187 Misc 2d 695).

Prior to September 1, 1877, New York undoubtedly applied the common-law rules governing the attorney-client privilege, including the rules relating to waiver of the privilege (see Matter of Cunnion, supra). On that date, a statute took effect which codified the common-law privilege (former Code of Remedial Justice § 835, later Code of Civil Procedure § 835) as well as a statute (former Code of Remedial Justice § 836, later Code of Civil Procedure § 836) that, as the Court of Appeals subsequently held, expanded the privilege by narrowly defining, in a manner inconsistent with the common law, the circumstances under which the privilege may be waived (see Matter of Cunnion, supra). However, the intricately-worded provisions of the statutes under review in Cunnion (supra) are markedly different from the current provisions contained in CPLR 4503, and there is no basis upon which to depart from the determination of the Court of Appeals (see Spectrum Sys. Intl. Corp. v Chemical Bank, supra at 377) that, unlike the statutes under review in Cunnion (supra), CPLR 4503 in its current form, does indeed merely codify the common law.

As can be seen from a reading of the statute itself, CPLR 4503 (a) (1) expressly permits the "client" to waive the privilege. In New York, the rule is clear that when the particular client in question is incompetent, the client's conservator may act as a surrogate for the client, and waive the privilege on the client's behalf. Such a conservator "stands in the shoes of his [or her] conservatee and * * * may waive the attorney-client privilege" (Rosenzweig v Bank of N.Y., 64 AD2d 599, 600, citing Matter of Fairbairn, 56 AD2d 259, 262). It is beyond question, then, that New York recognizes that the privilege may be waived by a surrogate decision maker in the context of an incompetent client. It would seem most incongruous to hold that the rule is to the contrary in the case of a client who is deceased (see Martin, Capra, and Rossi, New York Evidence Handbook § 5.2.8, at 362, supra).

It is in light of this logic that the common law has always provided that an executor may, in the interest of the estate, waive the attorney-client privilege of the deceased client. This is a rule which, according to one authoritative treatise (see 8 Wigmore, Evidence § 2329, at 640 [McNaughton rev 1961]), "is accepted with practical unanimity" (citing Brooks v Holden, 175 Mass 137, 55 NE 802; see District Attorney for Norfolk Dist. v Magraw, 417 Mass 169, 628 NE2d 24; Marker v McCue, 50 Idaho 462, 297 P 401; Buuck v Kruckeberg, 121 Ind App 262, 95 NE2d 304; Eicholtz v Grunewald, 313 Mich 666, 21 NW2d 914; Canty v Halpin, 294 Mo 96, 242 SW 94; Estate of Hebbeler, 875 SW2d 163 [Mo]; In re Thomas' Estate, 165 Wash 42, 4 P2d 837, affd 165 Wash 42, 7 P2d 1119; Martin v Shaen, 22 Wash 2d 505, 156 P2d 681; In re Curtis' Estate, 193 Kan 431, 394 P2d 59; Scott v Grinnell, 102 NH 490, 161 A2d 179; Taylor v Sheldon, 172 Ohio St 118, 173 NE2d 892; Holyoke v Holyoke's Estate, 110 Me 469, 87 A 40; Annotation, Waiver of Attorney-Client Privilege by Personal Representative or Heir of Deceased Client or by Guardian of Incompetent, 67 ALR2d 1268).

As recently recognized by Surrogate Roth in Matter of Colby (187 Misc 2d 695), there is no appellate authority in New York to support the proposition that the New York Legislature has enacted any statute that requires a departure from the common-law rule in this respect. There is, in other words, no authority binding on this Court that requires us to hold that, under the codification of the common law reflected in CPLR 4503, an executor acting in the interest of the estate has no power to waive the deceased person's attorney-client privilege.

The statement contained in the majority opinion in Matter of Fishman (32 AD2d 1063, affd 27 NY2d 809) which might be construed as supporting the rule that the attorney-client privilege becomes absolutely unwaivable upon the client's death is, as demonstrated by Justice Hopkins' concurring opinion in that case, obiter dicta. Several decisions of other courts contain statements in support of the rule that the power to waive the privilege dies with the client; however, these statements also constitute nonbinding dicta devoid of precedential value (see Matter of Weinberg, supra; Matter of Trotta, supra; Matter of Williams, supra). Such statements are, in our view, likewise devoid of persuasive value, in that they fail to explain what line of reasoning might support the conclusion that a privilege designed to protect the interests of a person may not, after that person's death, be waived by that person's fiduciary in order to advance the interests of that person's heirs. Furthermore, these cases unquestionably embrace a rule which is contrary to the common law, and they thus contradict the subsequent Court of Appeals decision in Spectrum Sys. Intl. Corp. v Chemical Bank (supra at 377) in which it was expressly held that CPLR 4503 must be regarded as a mere codification of the common law.

The defendant asserts that the executor of Ms. Rerisi's estate, and hence the assignee of the executor, has no power to waive the attorney-client privilege, so that the file from which disclosure is sought must, prior to its disclosure, be redacted so as to protect any material within the scope of the privilege. This view is most definitely inconsistent with the rule prevailing at common law, and it is hence inconsistent with the holding of the Court of Appeals in Spectrum Sys. Intl. Corp. v Chemical Bank (supra at 377), according to which the...