Wednesday, November 27, 2013

No Discovery Permitted Of Bar Admission Materials

In three related actions to recover legal fees, the New York Appellate Division for the Second Judicial Department has held that an order to produce a non-party's application for bar admission was improper:

In these three related actions involving disputes over legal fees, the Supreme Court, by order dated August 21, 2012, directed the production of materials relating to the pending application of nonparty Magnus Essunger for admission to practice law in the State of New York, including all documents submitted by Troutman Sanders, LLP, Albert Jacobs, LLP, Albert Jacobs, or any individuals on their behalf, for an in camera inspection. Essunger thereafter moved, in effect, to vacate so much of the order dated August 21, 2012, as directed the production of those materials. The Supreme Court denied the motion.

The Supreme Court lacked the discretion to direct the production of Essunger's application, including supporting documents, for admission to the bar. Judiciary Law § 90(10) mandates that "all papers, records and documents upon the application or examination of any person for admission as an attorney and counsellor at law . . . shall be sealed and be deemed private and confidential," except that, upon good cause shown, the justices of the Appellate Division may, in their discretion, permit disclosure of such materials. "The provisions for confidentiality set forth in subdivision 10 of section 90 . . . were enacted primarily, if not only, for the benefit of the attorney" (Matter of Capoccia, 59 NY2d 549, 554).

Contrary to the respondent's contentions, under the circumstances of this case, the Supreme Court did not have discretion to direct the production of Essunger's bar application simply because the respondent sought the materials directly from Essunger, and not from the Committee on Character and Fitness (cf. Matter of Rodeman, 65 AD3d 350, 352 [counsel violated Judiciary Law § 90(10) by disclosing materials in his possession related to a disciplinary proceeding]). Under circumstances such as those presented here, allowing a party to obtain these confidential materials by the simple expedient of demanding them from the applicant would unreasonably circumvent the protection afforded by Judiciary Law § 90.

The Chronicle of Higher Education had this article on the life and career of the person whose estate is at issue in the litigation. (Mike Frisch)

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