Terpin v. Pinsky

Background

Michael Terpin filed a letter motion concerning an email that attorney William M. Brodsky inadvertently sent to Terpin’s counsel, Paul A. Blechner, on March 16, 2022. Brodsky had spoken with Ellis Pinsky and considered representing him, but Brodsky never entered an appearance in the case. Pinsky was representing himself at the time. Brodsky said the email was intended for his law firm’s controller and asked Blechner to delete it. Pinsky’s current counsel later opposed Terpin’s use of the email, asserting without citing authority that it was privileged.

The five-line email concerned a potential client’s proposed method for paying an initial retainer and whether that method was acceptable to Brodsky’s law firm. Terpin’s counsel asked the court to decide whether the email had to be destroyed or could be retained and used in the litigation. The opinion states that Blechner had prudently kept the email from being used or disclosed while presenting the dispute to the court.

Legal standard

The court applied the attorney-client privilege, which protects confidential communications between a client and lawyer made for the purpose of obtaining or providing legal advice. The party asserting the privilege bears the burden of establishing all of its elements. The court noted that the privilege is narrowly construed because it prevents relevant information from being disclosed.

The court also relied on the rule governing inadvertently produced privileged information as the most analogous framework, while recognizing that the email was not produced in discovery and that Brodsky himself had not asserted privilege. Under that framework, the court proceeded to determine whether the email was actually privileged.

The court explained that, absent special circumstances, a client’s identity and fee arrangements generally are not protected by attorney-client privilege. Billing and similar administrative records are protected only when they reveal litigation strategy, the client’s motive for seeking representation, the specific legal services involved, or other confidential information.

Analysis and ruling

The court found that the email revealed none of those types of information. It discussed only the method for paying the initial retainer and whether the law firm would accept that method. It did not reveal the client’s motive for seeking representation, litigation strategy, the nature of legal services, or other confidential information.

The court rejected Pinsky’s counsel’s unsupported assertion that communications about fee arrangements within a law firm are necessarily privileged. Because Pinsky did not establish that the email was protected by attorney-client privilege and identified no other basis for requiring its return or destruction, the court concluded that there was no basis to prevent Terpin from using it.

Magistrate Judge Andrew E. Krause granted Terpin’s letter motion. Terpin was entitled to retain the email and use it in the litigation. The court did not decide the separate questions of whether privilege had been waived or whether Terpin could use the information even if privilege had been waived, because it found that the email was not privileged. The Clerk was directed to terminate the motion.