In 2017, actor, producer, director, and screenwriter Justin Theroux sued his Manhattan co-op building neighbor, a law firm senior equity partner, Norman Resnicow for trashing Theroux’s rooftop terrace and then interfering with his home renovations by weaponizing Resnicow’s legal training in a “twisted sport to bully and intimidate.”  As the court highlighted in a December order, the parties “do not get along, to put it mildly” and “resorted to this litigation to resolve or at least address their many disagreements.”  Most interesting of their disagreements has been the long discovery battle resulting in a refreshment of various important discovery and evidentiary doctrines, including attorney-client privilege and spousal privilege. 

For instance, previously Theroux challenged Resnicow’s claims of spousal privilege on dozens of emails the lawyer exchanged with his wife (and co-defendant), but the court found in October that “nearly all the emails were properly withheld or redacted on spousal-privilege grounds” and ordered only a handful of them to be produced.  Theroux also attempted to shield emails between himself and his business manager, who is a lawyer, but was ordered to produce most of the emails following an in-camera review by the court.  Theroux's most recent challenge, however, was successful.  Recently, the court ordered Resnicow to produce emails he exchanged with his law firm co-workers (an associate and in-house counsel) related to his dispute with Theroux, underscoring that just because you work at a law firm and are colleagues with lawyers does not automatically make those lawyers YOUR lawyers.

The court emphasized that attorney-client privilege protects only communications that are sent in the context of an established attorney-client relationship.  Although the relationship between attorney and client is contractual, a formal written agreement or payment of fees is not required.  Rather, absent a written agreement, “a court must consider the words and actions of the parties to ascertain if an attorney-client relationship was formed.”  In conducting this assessment, an attorney’s general statement that a party was a client, without more, is insufficient to demonstrate the relationship.  Here, the court held that Resnicow failed to establish an attorney-client relationship between him and his co-workers because:  (a) there was no formal indicia of such a relationship between him and the firm or the co-workers, such as a letter of engagement or a retainer agreement; (b) no attorneys’ fees were paid to the firm or the co-workers for their work in Resnicow's dispute with Theroux; and (c) neither the co-workers nor the firm ever appeared on behalf of Resnicow in the Theroux dispute, in person or on paper.  The court also reasoned that it could not imagine a state of the world in which the co-workers or the firm could be subjected to a legal-malpractice claim arising from assistance they provided Resnicow—as would be possible if they were indeed his attorneys.

Additionally, even when there is an attorney-client relationship, privilege may apply to attorney-client communications only if the communications were made for the purpose of obtaining or providing legal advice.  Here, Resnicow’s privilege log indicated that the associate sent Resnicow emails on how the doctrine of adverse possession can be applied in the context of a landlord-tenant relationship and how a motion to dismiss can be applied to a case involving proprietary leases.  The court found these to be “basic legal concepts, none of which specifically related to and integrated the facts of this case—as one would expect were Fidel providing legal advice to Resnicow.”  With respect to Resnicow’ s email with the firm’s in-house counsel, “a much more senior and experienced lawyer than” the associate, the court alluded that it may very well be possible given the “timing” that it included a discussion of “litigation strategy” regarding the Theroux dispute; however, per the court, the lack of an established attorney-client relationship rendered further analysis moot.