Court Explores the “Expectation of Confidentiality” Element of the Attorney-Client Privilege

September 15, 2004

In Ashkinazi v. Sapir, No. 02 CV 0002 (RCC), 2004 U.S. Dist. LEXIS 14523, at *4 (S.D.N.Y. July 27, 2004), a plaintiff argued that otherwise privileged conversations between a corporate executive and the corporate lawyer failed the “expectation of confidentiality” element “because the conversations took place over speakerphone and [the participants] were aware that other employees might overhear them.” The court rejected the argument, noting that the participants “were in their respective offices” and one had his door closed. Id. Most importantly, “there is no evidence that the conversations were actually overhead by anyone else.” Id.

Although lawyers must be vigilant about communicating with their clients where they might be overheard, the lawyers might be saved by the adversary’s inability to prove that anyone actually overheard them.