Ross v. Popper, 77 Civ. 4533 (GLG).

• Decision Date: 11 July 1980
• Docket Number: 77 Civ. 4533 (GLG).
• Citation: 9 BR 485
• Parties: Andrew ROSS and Elinor Ross, as Trustees of The Andrew Ross Studio, Inc. Profit Sharing Plan, Plaintiffs, v. Wolf A. POPPER, Wolf A. Popper, Inc., Jerome Stern, William Burke, Burlant & Lehrer, Paul Burlant and Stanley Lehrer, Defendants. Wolf A. POPPER, Third Party Plaintiff, v. Owen KILGANNON, Richard Hickey, Hyman Joseph, Oswald Ruggero and Ralph Burke, Third Party Defendants.
• Court: U.S. District Court — Southern District of New York

9 B.R. 485 (1980)

Andrew ROSS and Elinor Ross, as Trustees of The Andrew Ross Studio, Inc. Profit Sharing Plan, Plaintiffs, v. Wolf A. POPPER, Wolf A. Popper, Inc., Jerome Stern, William Burke, Burlant & Lehrer, Paul Burlant and Stanley Lehrer, Defendants.

Wolf A. POPPER, Third Party Plaintiff, v. Owen KILGANNON, Richard Hickey, Hyman Joseph, Oswald Ruggero and Ralph Burke, Third Party Defendants.

77 Civ. 4533 (GLG).

United States District Court, S.D. New York.

July 11, 1980.

Zalkin, Rodin & Goodman, Andrew D. Gottfried, New York City, for plaintiffs, Andrew Ross and Elinor Ross.

Rogers, Hoge & Hills, Herbert C. Ross, Jr., New York City, for defendants, Paul Burlant and Stanley Lehrer.

Lewis Novod, New York City, for defendant-third party plaintiff, Wolf A. Popper.

Schwartz & Sachs, P.C., Carle Place, N.Y., for defendants, Jerome Stern and William Burke.

Kane, Kessler, Proujansky, Preiss & Nurnberg, P.C., New York City, for third party defendant, Ralph Burke.

D'Amato & Lynch, New York City, for third party defendants, Owen Kilgannon and Richard Hickey.

Morris Pottish, New York City, for third party defendants, Hyman Joseph and Oswald Ruggero.

MEMORANDUM AND ORDER

RABY, United States Magistrate:

This Memorandum and Order relates to a motion filed June 16, 1980 on behalf of defendant-third party plaintiff Wolf A. Popper, for an order determining:

"a. That any attorney-client privilege heretofore existing between attorneys Hyman Joseph and Oswald Ruggero individually and as the law firm of Joseph & Ruggero and North Broadway Funding Corp., its officers and shareholders, be determined to be waived and of no force and effect;

"b. That any attorney-client privilege heretofore existing between attorneys Paul Burlant and Stanley Lehrer individually and as the law firm of Burlant & Lehrer and North Broadway Funding Corp., its officers and shareholders, be determined to be waived and of no force and effect;

"c. That Hyman Joseph, Oswald Ruggero, Paul Burlant and Stanley Lehrer be directed at their examinations before trial to testify as to all communications and matters heretofore claimed as privileged had with or concerning North Broadway Funding Corp., its officers and shareholders."

Basically, the problem here presented is one resulting from a stated sense of apprehension on the part of the attorneys hereinabove mentioned, Hyman Joseph, Oswald Ruggero, Paul Burlant and Stanley Lehrer, that considerations of professional ethics prohibit them from disclosing any confidential communications had by them with North Broadway Funding Corp., or its officers, absent the receipt by them of an express waiver of attorney-client privilege as to said communications on the part of North Broadway Funding Corp., through an authorized officer. While recognizing that the attorney-client privilege is a privilege of the client, and not that of the attorney, the above-mentioned attorneys feel, quite properly, I think, that there should be some indication on the part of the client whose rights are affected as to whether the client desires to assert attorney-client privilege before the requested disclosures are made.

The corporation involved in this situation is, as the motion papers indicate, North Broadway Funding Corp., which is presently undergoing bankruptcy proceedings in the District Court for the Eastern District of New York, Bankruptcy Docket No. 77 B 1716 E.D.N.Y. Attached to the motion papers is a copy of a letter date May 21, 1980, from North Broadway Funding Corp.'s Trustee in Bankruptcy, Timothy W. Sullivan, Esq., in which Mr. Sullivan states the following:

"Based on the advice of counsel I hereby waive any rights that may have accrued to me to invoke the attorney-client provision sic regarding communications, correspondence, etc. concerning the above said bankruptcy sic and between Paul Burlant and Stanley Lehrer, and between Joseph Ruggerio sic and Leo Goldsmith sic."

The document just quoted is submitted by the moving party as a predicate for his contention that since the duly constituted Trustee in Bankruptcy of North Broadway Funding Corp. has thereby purported to waive any claim of attorney-client privilege inuring in favor of North Broadway, any further refusal on the part of Messrs. Joseph, Ruggero, Burlant or Lehrer to testify as to confidential communications between them and North Broadway is without proper legal foundation. The movant also contends that William Burke and Jerome Stern, the principal officers of North Broadway, have waived attorney-client privilege to the extent that it relates to them individually. The latter contention is based upon an appearance in open Court before me, of Neil R. Flaum, Esq., of the firm of Schwartz & Sachs, P.C., One Old Country Road, Carle Place, New York, 11514, in which Mr. Flaum confirmed that his clients, William Burke and Jerome Stern, as principal officers of North Broadway Funding Corp. prior to the filing by that corporation of its petition in bankruptcy, had declined to assert any claim of attorney-client privilege with respect to the matter before me.

The attorneys opposing the granting of the relief sought by this motion do not, as I see it, seriously question their obligation to divulge any confidential communications that may have occurred between them and Messrs. William Burke and Jerome Stern in the latter's capacity as individuals, as distinguished from their capacity as principal officers and representatives of the corporation. It is my assumption, however, that the essence of any communications between the attorneys involved and Messrs. Burke and Stern involves the activities of the corporation of which they were principal officers, i.e., North Broadway Funding Corp.

Addressing themselves to North Broadway as such, the attorneys opposing this motion urge, primarily, that the purported waiver by North Broadway's Trustee in Bankruptcy is so unclear in its tenor that it cannot properly be viewed as representing an unequivocal intention on the part of the...