May 11, 2022
In most situations, a law firm's clients' identities do not deserve privilege protection. But as with so many other general privilege rules, there are exceptions.
In Berman v. Holland & Knight LLP, plaintiffs claimed that Holland & Knight "lured them into investing millions of dollars in a bogus tax shelter scheme by giving them knowingly false legal advice in opinion letters." Index No. 652466/2015, 2022 N.Y. Slip Op 30402(U), at *1 (N.Y. Sup. Ct. Feb. 4, 2022). They sought the identity of other Holland & Knight clients who received the firm's advice in connection with the same tax shelters. The court rejected plaintiffs' discovery effort, condemning it as "a reconnaissance mission." Id. at *8. Acknowledging that a law firm's clients' identities normally do not deserve privilege protection, the court noted that plaintiff's discovery "seeks more than just the identities of Holland & Knight clients; it seeks the identities of a sub-set of clients, based on whether those clients received certain advice from the firm." Id. at *4.
Respected law firms like Holland & Knight should take comfort in such common-sense application of the general inapplicability of privilege protection for their clients' identities.