applying Garner's "good cause" for disclosure criterion on facts but otherwise declining expressly to adopt it as the law of the stateSummary of this case from Nunan v. Midwest, Inc.
Argued April 27, 1989
Decided June 8, 1989
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, John G. Dier, J.
Michael T. Wallender, John T. DeGraff, Jr., and Jean M. Mahserjian for appellant.
Francis J. Holloway, H. Wayne Judge and Mary Ann D. Allen for respondents.
The order of the Appellate Division should be affirmed, with costs.
We agree with the Appellate Division that Supreme Court correctly determined that the attorney-client privilege was not applicable to certain questions asked defendant at his examination before trial. Accordingly, defendant was properly compelled to answer.
The questions regarding whether legal advice was obtained and how such advice was paid for were not protected. The attorney-client privilege extends only to confidential communications made to an attorney for the purpose of obtaining legal advice (see, Matter of Priest v Hennessy, 51 N.Y.2d 62, 69). Whether an attorney was consulted and who paid the legal fees do not ordinarily constitute such confidential communications (see, id.). We are not persuaded that the instant case falls outside the general rule (cf., Banco Frances e Brasilerio S.A. v Doe, 36 N.Y.2d 592, 599; Matter of Kaplan [Blumenfeld], 8 N.Y.2d 214, 218-219).
In addition, the Appellate Division correctly held — given the particular matters in issue about which disclosure was sought — that plaintiffs were entitled to inquire concerning the substance of the legal advice. It appears from the submissions that defendant consulted the attorneys, at least in part, in his capacity as trustee of the trust of which plaintiffs are beneficiaries. Under these circumstances, where a fiduciary relationship is present, some courts have held that the attorney-client privilege does not attach at all (see, United States v Evans, 796 F.2d 264, 265-266 [9th Cir]; Washington-Baltimore Newspaper Guild v Washington Star Co., 543 F. Supp. 906, 909 [DDC]; Riggs Natl. Bank v Zimmer, 355 A.2d 709, 713-714 [Del]) while other courts have held that the privilege attaches but that it may be set aside by a showing of good cause (see, Quintel Corp. v Citibank, 567 F. Supp. 1357, 1360-1362 [SD NY]; see also, Garner v Wolfinbarger, 430 F.2d 1093, 1103-1104 [5th Cir]). We agree with the Appellate Division that "good cause" is present here ( 142 A.D.2d 906, 910-911). Therefore, the communications are not privileged in any event.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
Order affirmed, with costs, in a memorandum. Certified question answered in the negative.