Keeping The Privilege: A Primer On The "Stock" Decision

This past July (2016), the First Department became the first appeals court in New York to recognize the "intra-firm privilege," holding that certain communications between a lawyer and his or her firm's General Counsel are protected by the attorney-client privilege. The decision in Stock v. Schnader Harrison Segal & Lewis LLP, 35 N.Y.S.3d 31 (1st Dept. 2016), overturned a lower court decision that had caused concern and uncertainty within the Bar in general, and in the professional responsibility community in particular.

The intra-firm privilege raises a fundamental question about the legal profession — specifically whether a law firm, like any other business, can protect communications between its employees (lawyers) seeking legal advice and the company's (the firm's) in-house counsel or whether the analysis somehow changes because the lawyer-employees seeking legal advice are fiduciaries acting in the course of representing a client.