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13 February 20245 minute read

New York’s High Court affirms attorney-client privilege for in-house training materials

New York’s highest court, the Court of Appeals, recently issued an opinion explaining and clarifying the scope of the attorney-client privilege under New York law.  The opinion is a useful reminder to in-house counsel that their communications to internal clients – no matter the form or method of communication, and even when proactively made and not in response to a specific request for advice – will be protected so long as they render legal advice or services.  


In Matter of Appellate Advocates v. New York State Department of Corrections & Community Supervision, 2023 N.Y. Slip Op. 06466 (N.Y. 2023), the petitioner filed a request under New York’s Freedom of Information Law with respondent Department of Corrections and Community Supervision (DDOCS) for materials related to the Board of Parole’s decision-making process.  DDOCS, in turn, disclosed thousands of pages of material, but withheld documents its counsel prepared to train and advise the Board of Parole on how to comply with their legal duties and obligations and exercise their discretionary authority.  Upon review of the withheld documents, the New York Supreme Court held that DDOCS’s withholding was proper under the attorney-client privilege, and the Appellate Division affirmed.  The Court of Appeals has now affirmed.

CPLR § 4503(a)(1) codifies the attorney-client privilege and exempts from disclosure confidential attorney-client communications that are (1) “primarily or predominantly of a legal character” and (2) made “for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship.”  See Spectrum Sys. Int’l Corp. v. Chem. Bank, 78 N.Y.2d 371, 377-78 (N.Y. 1991).  In determining whether the privilege applies, “[t]he critical inquiry is whether, viewing the lawyer’s communication in its full content and context, it was made in order to render legal advice or services to the client.”  Id. at 379.

Under this standard, the Court of Appeals determined from the content and context of the withheld documents that they were privileged communications from DDOCS’s counsel.  The Court found that the documents (1) “contain[ed] counsel’s advice regarding compliance with legal requirements concerning parole interviews and parole determinations;” (2) “summarize[d] recent court decisions and advise[d] on how to apply statutes, regulations, and case law;” and (3) “include[d] guidance on drafting parole decisions that accord with the law.”  2023 N.Y. Slip Op. 06466, at *2.  According to the Court, “the documents reflect[ed] counsel’s legal analysis of statutory, regulatory and decisional law, and provide[d] guidance for the [Board of Parole] commissioners on how to exercise their discretionary authority,” and therefore fell “squarely within” the attorney-client privilege.  Id.

In reaching this determination, the Court rejected several arguments set forth by the petitioner.  First, the Court rejected the argument that the attorney-client privilege applies only to an existing factual dispute.  The Court clarified that it had never endorsed the position that the privilege applied only to communications made in anticipation of litigation or during a pending action, and noted that “[c]ounsel often provides legal advice to assist the client in deciding how best to order their affairs in compliance with legal mandates, including what action, if any, to take in order to avoid litigation.”  See id. at *2.  According to the Court, “proactive compliance with the law has patent benefits.”  Id.  

Second, the Court rejected the argument that the attorney-client privilege applies only where a client directly requests counsel’s advice or discloses confidential information.  According to the Court, counsel may, in its “professional judgment, experience, skill, and knowledge of the law,” and in assessing “the client’s potential needs and possible risk exposure,” “bring to the client’s attention legal matters concerning statutory, regulatory and decisional law, without the client initiating contact or positing a specific question.”  Id. at *3.  

Third, the Court rejected the argument that training materials are per se not exempt from disclosure.  The Court noted that “training materials are privileged when the materials convey confidential legal advice,” and held:

The lawyer's communication of that analysis and advice is privileged regardless of whether counsel communicates its view to the client in a slide show, as opposed to in a letter or memorandum.  Nor does it matter that this analysis and advice is communicated during a training session.  What matters is that the information is advice on the law pertaining to the commissioners' decisions on whether to grant parole.

Id.  The Court further held that, ultimately, “[c]ounsel is free to determine the best method to communicate legal advice to the client.”  Id.

Key takeaways

The Court of Appeals’ decision in Appellate Advocates offers encouragement and support for the efforts of legal compliance professionals – in-house counsel and outside legal advisors alike – to proactively and continuously provide their clients with legal analysis and advice and apprise them of important updates concerning the legal and regulatory rules relevant to their operations.  With specific regard to training materials or alerts containing legal advice or insights – whether in the form of a slideshow, deck, or otherwise – these materials will be afforded the same protections as traditional legal advice in response to a client’s question about a specific real-world scenario.

For more information, please contact the authors.