Parisi v. Leppard

• Decision Date: 02 May 1997
• Citation: 172 Misc.2d 951,660 N.Y.S.2d 307
• Parties: Ralph PARISI, Suing in the Right of Plainview Orthopedics & Sports Associates, P.C., Plaintiff, v. John L. LEPPARD et al., Defendants.
• Court: New York Supreme Court

Page 307

660 N.Y.S.2d 307

172 Misc.2d 951

Ralph PARISI, Suing in the Right of Plainview Orthopedics &amp Sports Associates, P.C., Plaintiff, v. John L. LEPPARD et al., Defendants.

Supreme Court, Nassau County.

May 2, 1997.

Michael B. Schulman, P.C., Plainview, for John L. Leppard and others, defendants.

Weinstein, Kaplan & Cohen, P.C., Garden City, for Neal Smith, defendant.

Steinberg, Fineo, Bykofsky & Burlant, P.C., Garden City, for plaintiff.

ROBERT ROBERTO, Jr., Justice.

The motion of all defendants, except Neal Smith, M.D., and cross motion of defendant Smith to quash subpoenas duces tecum dated February 14, 1997 are decided as follows:

The subpoenas at issue were served by plaintiff Ralph Parisi, M.D. on Jacob Steiner, Esq., defendant John J. Leppard's former attorney, and on Richard Weiss, Esq., defendant Smith's attorney. Although they are not the attorneys of record in the present litigation, both Mr. Steiner and Mr. Weiss were involved in the events that led to the suit. The action is founded on the alleged wrongful acts of the defendants in the breakup of one medical practice in which Dr. Parisi and Dr. Leppard were equal owners, Plainview Orthopedics & Sports Associates, P.C. ("POSA"), and the founding of another, competing practice by Dr. Leppard and Dr. Smith, Orthopedic & Sports Associates of Long Island, P.C. ("OSALI").

Initially, the Court finds that Mr. Steiner was Dr. Leppard's attorney, and never represented both Dr. Parisi and Dr. Leppard, or POSA, with regard to any matter in which Dr. Parisi did not also have his own attorney. This is borne out by Mr. Steiner's affirmation on this motion denying such joint representation, in which he also names a series of other attorneys who represented Dr. Parisi's interests. A similar affirmation was submitted on a prior motion to disqualify him as counsel, which is annexed as an exhibit here. It is undisputed that the disqualification motion was withdrawn by Dr. Parisi, and this fact, as well as the failure of Dr. Parisi to submit or refer to any retainer statement regarding Mr. Steiner's representation of either him or POSA, supports Mr. Steiner's denials. Certain bills for services rendered by Mr. Steiner, which on their face seem to indicate that at one time he did represent the present antagonists jointly, have been satisfactorily explained; Dr. Parisi and Dr. Leppard had their legal bills paid by POSA so that each could reap certain tax benefits.

Accordingly, Mr. Steiner may not be required to answer questions at a deposition or to produce documents concerning legal advice he gave to Dr. Leppard, or communications he received from Dr. Leppard that were in the context of such counsel, even if such exchanges concerned matters that were of contemporaneous interest to Dr. Parisi and POSA. CPLR 4503(a); CPLR 3101(b); Matter of Vanderbilt, 57 N.Y.2d 66, 453 N.Y.S.2d 662, 439 N.E.2d 378.

Mr. Steiner may not, however, simply refuse to appear at a deposition or object to each and every question asked, or refuse to produce any subpoenaed document, simply because he represented Dr. Leppard. It is apparent that certain documents called for in the subpoena may contain facts relevant to this action which do not call on him to reveal the contents of counsel he gave or communications he received from his client, and are not otherwise privileged.

The specific document requests are discussed immediately below and again after an evaluation of the subpoena served on Mr. Weiss.

Bills to POSA must be produced (item 1 of the exhibit annexed to the subpoena) although not the time records (item 2), which could serve to identify the actual work done for Dr. Leppard. De La Roche v. De La Roche, 209 A.D.2d 157, 617 N.Y.S.2d 767. The same direction applies to items 6 and 7, bills and time records, respectively, concerning OSALI. The subpoena must be obeyed regarding correspondence about POSA that was received from or given to third parties (excepting, possibly, Dr. Smith, as discussed below; item 3). The same is directed regarding any agreements or draft agreements that were given to third parties to review (item 4). The subpoena must also be obeyed with regard to retainer agreements and payments made to Mr. Steiner (items 9 & 13). Oppenheimer v. Oscar Shoes, 111 A.D.2d 28, 488 N.Y.S.2d 693. A response must be made to item 12 to the extent that documents or correspondence were to or from third parties, as well as to items 15 and 16 regarding exchanges with the accounting firm.

The Court finds items 5(1) and 8 to be inappropriate for production, as on their face they seek information that would necessarily involve disclosure of confidential communications between lawyer and client, or would represent Mr. Steiner's work product. CPLR 3101(c); see Spectrum Sys. Intl. Corp. v. Chemical Bank, 78 N.Y.2d 371, 575 N.Y.S.2d 809, 581 N.E.2d 1055.

However, to the extent that the privilege was waived by Dr. Leppard concerning any given document by dint of its being shown or sent to a third party, the same should be disclosed, excepting, again, those instances where the third party was Dr. Smith.

There is no issue of joint representation regarding Mr. Weiss, who represents Dr. Smith, and Mr. Weiss may therefore raise the privilege with regard to questions he may be asked at a deposition, or in response to the documents demanded if a response would require violating attorney-client confidences. As with Mr. Steiner, however, there can be no flat refusal to appear for a deposition or to respond to document requests.

As far as the specific documents demanded of Mr. Weiss are concerned, the same principles that guide resolution of the subpoena served on Mr. Steiner apply. Accordingly, "bare" bills, payment statements and retainer agreements must be provided (items 1, 3 and 4) but not the time records (item 2); items 5 and 8 are privileged or are shielded as attorney work product; and notwithstanding the foregoing, any document that was given or shown to, or originated by, a third party must be produced.

The Court now turns to items 5(2), 10, 11, and 14 of the subpoena served on Mr. Steiner, and items 6, 7, 9 and 10 of the one served on Mr. Weiss, as they concern the relationship of Dr. Leppard and Dr. Smith.

Generally speaking, these items seek information regarding four-way meetings held between Mr. Weiss and his client and Mr. Steiner and his client, as well as documents that may reveal other communications that flowed between them regarding not only POSA and Dr. Parisi, but also the competing medical practice, OSALI. The Court therefore must decide a question that apparently has not been addressed squarely by the New York State courts. This is whether the so-called "joint defense" or "common interest" extension of the attorney-client privilege applies in a civil case, and thus may serve to ground an assertion of this privilege in the present action. The privilege would otherwise not exist in the case of joint meetings or document exchanges, because the communication between lawyer and client took place in the known presence of a third party. People v. Harris, 57 N.Y.2d 335, 343, 456 N.Y.S.2d 694, 442 N.E.2d 1205; People v. Borcsok, 107 A.D.2d 42, 485 N.Y.S.2d 766; see also, Prince, Richardson on Evidence, § 5-204 [Farrell, 11th ed] and cases cited.

Assuming that the privilege may be asserted...