Professional Responsibility

This article will explore the implications of the troubling privilege issues that confronted a lawyer in Brooklyn when he found that he owed conflicting duties to two clients in unrelated matters in connection with the same item of privileged information. Following that discussion, the article will return to the topic addressed recently in this column (“Privilege in Attorney-Client E-Mails in Employment Area,” New York Law Journal, Nov. 2, 2009, p.3), namely whether or not the attorney-client privilege is lost when clients use their employers’ technology to send e-mails to their lawyers. Two more cases have addressed the same issue in recent weeks, raising the question whether a consistent set of principles can be applied when these issues arise.

Duties to Two Clients

Romano v. Ficchi, 2009 WL 1460781 (N.Y. Sup. Kings Co.), dealt with the question of what duties a lawyer owes—and to whom—when he learns a fact in connection with the representation of a client that, although confidential in connection with that engagement, may be material to the lawyer’s representation of a second client in an entirely separate and distinct matter? Attorney Michael S. Ficchi represented the plaintiff Carol Romano, who purchased a residential condominium unit.