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NY Supreme Court: Trump Org Wrongly Asserted Attorney-Client Privilege; Lawyers Must Turn Over Documents

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A New York State Supreme Court judge on Friday ruled that a former law firm for the Trump Organization improperly withheld documents from state investigators under the attorney-client privilege doctrine and must hand over the requested records before the end of next week.

Judge Arthur Engoron issued a one-page order that found Morgan, Lewis & Bockius LLP wrongly asserted the privilege over multiple documents that had nothing to do with communications between the firm and its recently jettisoned clients.

“The Court finds that many of the communications Morgan Lewis marked as privileged were communications addressing business tasks and decisions, not exchanges soliciting or rendering legal advice,” the judge determined before citing case law. “'[A] lawyer’s communication is not cloaked with privilege when the lawyer is hired for business or personal advice, or to do the work of a nonlawyer.'”

New York Attorney General Letitia James has been seeking discovery in the case against the Trump Organization originally filed under seal as a series of document requests in August 2020.

The litigation concerns alleged financial improprieties committed by multiple members of the Trump family and its agents within the family business–including the former president himself. Specifically, James is concerned that the defendants improperly inflated the value of assets “on annual financial statements in order to secure loans and obtain economic and tax benefits,” according to the memo.

The inquiry largely focuses on whether or not the Trump Organization improperly inflated the value of the Trump family’s palatial Seven Springs Estate in Westchester County–a suburb of New York City.

Litigation has played out semi-publicly over the past few months.

The investigation quickly ensnared Eric Trump, who was ordered by the court in September 2020 to sit for a deposition in the case. The attorney-client privilege tactic was attempted in October 2020–which Law&Crime columnist Elura Nanos predicted would not end favorably for the Trump Organization at the time.

Most recently, in December 2020, the court ordered a secondary review of documents sought by the attorney general after initially taking the law firm and the Trump Organization at their word over the privilege determinations.

Judge Engoron conducted a private in camera review of those documents, which the firm had previously aimed to keep away from investigators, and determined that the privilege did not apply–ordering the former Trump Organization attorneys to provide the files to James’s office by Feb. 4.

From the court’s order [caps in original]:

MORGAN LEWIS IS HEREBY ORDERED TO PRODUCE TO PETITIONER, BY FEBRUARY 4, 2021, ALL DOCUMENTS MARKED “NOT PRIVILEGED” BY THIS COURT IN THE PRIVILEGE LOG BEING EMAILED TODAY UNDER SEPARATE COVER TO ALL PARTIES. RESPONDENT NEED NOT PRODUCE DOCUMENTS MARKED “PRIVILEGED” OR “IRRELEVANT.”

The ruling also hinted at the nature of some of those materials.

“Similarly, any communications within Morgan Lewis speaking to public relations are of a business, not legal, nature,” Engoron wrote. “Moreover, as previously noted, a client waives the privilege if communications are made in the presence of, or are subsequently revealed to, a third party.”

The New York State Supreme Court system is not the Empire State’s highest court. That court is the Court of Appeals. Supreme Court judges are authorized to handle a wide variety of trial-level cases in a county or several counties — similar to a superior court bench in other states.

[Image via TIMOTHY A. CLARY/AFP/Getty Images]

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