This article discusses two issues which have received short shrift in family law: the attorney-client privilege and the notice of pendency. As to the first issue, it is often erroneously assumed that communications between attorney and client are automatically privileged and thus shielded from adversarial eyes, especially in matrimonial litigation. However, Willis v. Willis,1 below, shows that carelessness in securing communications between attorney and client, such as when family members share a computer, can have the devastating result of not only waiving the privilege but also of compelling their disclosure.
The second issue examines a rule that is unique to the First and Second departments: that a notice of pendency is unavailable in matrimonial litigation notwithstanding that the statute imposes no such restriction. Matrimonial litigation, where one spouse alone holds title to real property, is rife for abuse and should most certainly be available to protect the rights, albeit inchoate, of the nontitled spouse. The newly enacted automatic stays in Domestic Relations Law (DRL) §236B(2) provide inadequate protection.
Attorney-Client Privilege
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