Documents Containing Sensitive Information Permitted to be Submitted Under Seal in Legal Malpractice Case Despite Waiver of Attorney-Client Privilege
Krivulka v. Lerner, No. 2:20-CV-09724, 2024 WL 4318735 (D.N.J. Sept. 27, 2024)
This is one in a series of decisions stemming from a legal malpractice action for estate planning.
The defendants/lawyers had acted as counsel for the decedent, Joseph Krivulka, and his wife, plaintiff Angela Krivulka, for estate planning and other purposes.
The plaintiff alleged that the defendants failed to advise that her interests conflicted with those of the decedent, depriving her of the opportunity to engage separate counsel and, based upon independent legal advice, to receive additional assets upon the decedent’s death.
This decision dealt with a motion for summary judgment filed by the defendants and in particular whether materials filed with that motion were to be under seal. The plaintiff agreed to the sealing of certain documents but objected to others.
More specifically, the defendants sought to seal documents containing sensitive financial and personal information, as well as communications protected by an attorney-client privilege that belonged to husband’s estate.
The court reviewed the materials and found that they contained highly confidential information, including estate planning details, financial data, and privileged communications, justifying their sealing to protect privacy interests and attorney-client privilege. The court rejected the plaintiff’s arguments regarding waiver of the attorney-client privilege and prior public disclosure.
Among the documents deemed to be sealed were: an email chain among the defendants/lawyers relating to the joint representation of the Krivulkas; a trust agreement that contained highly sensitive and confidential information, even though that document had been made public when the plaintiff filed an earlier appeal; and handwritten notes by the lawyers, which the court ruled had to be sealed to protect the attorney-client privilege and work product doctrines.
The court also addressed the scope of the attorney-client privilege and noted that the inclusion of financial advisors in the communications did not destroy the privilege, in view of the detailed and complex financial matters bearing on the estate planning advice; this rendered the financial advisor’s participation reasonably necessary to facilitate the attorney-client communication.