Matter of Kirk

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[*1] Matter of Kirk 2011 NY Slip Op 51185(U) Decided on May 10, 2011 Surrogate's Court, New York County Glen, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 10, 2011
Sur Ct, NY County

Probate Proceeding, Will of Alexis Kirk, Deceased,



For Movants, John Mahdessian and Wendy Handelman, Greenfield Stein and Senior LLP (Harvey Corn, Esq. and Angelo Grasso, Esq., of counsel)

Respondent Ann Pincuss Berman, Esq. (counsel to Lisa Kirk and Alexia Kirk) pro se, Law Offices of Ann Pincuss Berman, P.C.

Kristin Booth Glen, J.

In this probate proceeding, respondents seeking discovery and examinations pursuant to SCPA § 1404 have moved to compel compliance with a subpoena duces tecum served on attorney Ann Pincuss Berman. She drafted the May 6, 2010 instrument offered for probate by Lisa Kirk and Alexia Kirk, daughters of decedent Alexis Kirk. The May 6th instrument divides the estate (with the exception of an vintage sports car) between the two daughters and nominates them as executors. Decedent died on May 17, 2010.

Decedent purportedly executed another will on April 29, 2010, which had been drafted by a different attorney. The residuary under this instrument was split between the Armenian Church of America (20%) and a friend of decedent, John Mahdessian (80%). The April 29th will also provided for certain specific bequests, including $50,000 to each of decedent's two daughters and $10,000 to another friend, Wendy Handelman. Mahdessian and Handelman have sought SCPA § 1404 discovery and are movants here. The Armenian Church and the Attorney General's office have also appeared in the probate proceeding, but have not made submissions on the current motion.

Attorney Berman's involvement was not limited to estate planning for the decedent. Berman was also retained by decedent's daughters under a power of attorney that he had given them. In a short-lived proceeding in Supreme Court (decedent died the same day an index number was issued), the daughters as decedent's attorneys-in-fact sued Mahdessian for discovery and turnover of assets that he allegedly had improperly taken or converted from the decedent. After death, proponents, who have preliminary letters testamentary, have commenced a discovery and turnover proceeding (SCPA § 2103) against Mahdessian that is currently being litigated in [*2]this court.

Among other things, movants' subpoena sought all drafts and versions of the May 6th instrument, including handwritten notes and markups, copies of prior wills and codicils, documents received for the purposes of preparing and executing the May 6th instrument, and all correspondence, memoranda and notes concerning its preparation and execution. The subpoena also sought documents concerning communications, meetings or conversations with the decedent or anyone on his behalf, but in their reply to Berman's affidavit in opposition to the motion, movants have confirmed that the subpoena "only seeks documents that relate to the preparation and execution of the Purported Will."

Berman has produced responsive documents and has provided a privilege log, numbering 46 pages of documents, claiming they are properly withheld on grounds of attorney-client or attorney work product privileges. The documents, so numbered, have been submitted for the court's in camera review. Berman states that the documents on this log were in her file relating to the Supreme Court action and not in her file for will preparation/estate planning for decedent. After reviewing the log, movants have submitted papers arguing that some of the documents are not properly withheld on privilege grounds.

The relevant privileges are those protecting attorney-client communications (CPLR § 4503[a]) and attorney work product (CPLR 3101[c] and CPLR 3101[d][2]).[FN1] The party asserting the privilege has the burden of establishing that it applies and thus shields a document from disclosure (Graf v Aldrich, 94 AD2d 823, 824 [3d Dept 1983] [citations omitted]; Stenovich v Wachtell Lipton Rosen and Katz, 195 Misc 2d 99, 105-106 [Sup Ct NY County 2003]). To fall within the attorney-client privilege, it must be shown that "a communication was made and retained in confidence, and that it was made principally to assist in obtaining or providing legal advice or services for the client" (Stenovich, 195 Misc 2d at 105-106). The work product privilege encompasses documents that would naturally be considered the product of an attorney's work, such as notes reflecting interviews, mental impressions, and personal beliefs and statements, memoranda, correspondence, and briefs (Victory Markets, Inc. v Durer, 51 AD2d 895, 895 [1st Dept 1976] [citations omitted]). In general, the privileges are waived by failing to retain the documents or communications in confidence through release to third parties who are neither agents nor employees of either the attorney or client (see e.g. Morgan v NYS Dept. of Environ. Conservation, 9 AD3d 586 [3d Dept 2004] [documents "cc'd" to third parties lost privilege]). However, in the context of probate proceedings, the law contains a significant exception to the general rule: "an attorney or [her] employee shall be required to disclose information as to the preparation, execution or revocation of any will or other relevant instrument," provided that no such disclosure may be made of any communication tending to disgrace the memory of the decedent (CPLR § 4503[b]). As noted, movants' demand relates only to documents (broadly defined) that concern "the preparation and execution of the Purported [*3]Will." Thus, given the limits of movants' document demand, subpoenaed documents that would otherwise be privileged must still be produced pursuant to the dictates of CPLR § 4503(b).

Having reviewed the documents in camera under these standards, the court decides the motion to compel as follows. Documents numbered 1 through 10 and 19 through 21 [FN2] were properly withheld as attorney-client communications within the privilege and do not relate to the preparation and execution of the proffered will. Documents numbered 11 through 17 [FN3] are not privileged since they are copies of Berman's communications with third persons, that is, those with whom there was no attorney-client relationship. However, because these documents do not relate to the preparation and execution of the proffered will, they were properly withheld as not within the category of documents demanded. This is also true of document numbered 34. It is a copy of an email communication from Berman to a third party, but it is not related to the will offered for probate and thus need not be produced in response to the subpoena.

Documents numbered 22 to 26 are described on the log as "Notes forwarded to [Berman] from Michael Nuremberg [r]egarding interview with Decedent about his family, assets, John Mahdessian." Berman's relationship to Nuremberg is not explained by Berman (much less by proponents, who have not submitted papers on the motion). There is no indication in the record that he was Berman's agent or employee. Since the burden rests with the party seeking to withhold disclosure, proponents have not met their burden of showing that the privilege attaches to this document and, given that it appears to be dated May 6th, the same day that decedent executed the instrument offered for probate, and that it could relate to decedent's estate plan or his testamentary wishes as regards the will sought to be probated here, it should be produced.

The same is true for documents numbered 28 through 31; these documents are identified on the privilege log as handwritten lists of telephone numbers and "certain items," but the authors thereof are "unknown," with the proviso that the document numbered 29 is listed as "possibly Jeffrey Miller'." There is no indication on the log that these were communications by Berman's clients to her in aid of obtaining her legal advice. There is no explanation of who Jeffrey Miller is, and there is no indication that he was a client, agent or employee of Berman. Nor, obviously, can these documents, identified by Berman from "unknown" sources, be Berman's work product. Consequently, there has been no showing that these documents fall within any privilege, and they should be produced as documents relating to the preparation of the propounded will.[FN4]

By contrast, according to the log, documents numbered 27, 32, 33, and 35 are Berman's [*4]handwritten notes and are properly considered attorney work product. However, they need not be produced because they do not relate to the preparation or execution of the May 6th instrument.

Documents numbered 36 and 37 are letters from attorney Timothy Armbrecht to the concierge at 400 East 58th Street and to Berman, respectively. There is no indication that attorney Armbrecht and attorney Berman were jointly representing anyone, including the concierge addressed in one of these letters. Certainly Berman does not make such claims. Accordingly, proponents have not met their burden of withholding these letters on privilege grounds. However, since they do not relate to the propounded instrument's preparation or execution, they are not within the demand and need not be produced.

Document 38 is a printout of an email communication from Lisa Kirk to Berman, and it falls within the attorney-client privilege and should not be disclosed because it does not relate to the preparation and execution of the May 6th instrument.

Document 39-40 is a billing statement from Berman to proponents, "Regarding the Estate of Alexis Kirk." Although generated after decedent's death, it provides billing for her services in preparing the will, and it should therefore be produced, with redactions of the services provided after May 6th because such information is beyond the limits of the demand.

Finally, documents numbered 41 through 46 are a "clients' log of tape recording (at Decedent's apartment)" that relate to "John Mahdessian, Decedent's assets." Apparently, there were some tape recordings of the decedent and his interactions with others (though this is not made clear on this record) on certain days, at least some of which were in April of 2010. Because these are not transcripts of the tape recordings, nor the actual tapes themselves, but transmittals to Berman, as attorney, of client impressions and descriptions of what is on the tapes, they constitute privileged attorney-client communications. Nothing in them, however, relates to the preparation or execution of the will offered for probate. Consequently, they need not be produced in response to the subpoena.[FN5]

Accordingly, the motion to compel is granted to the extent of requiring Ann Pincuss Berman to promptly turn over to movants' counsel documents numbered 22 through 26, 28 through 31, and 39 through 40, as set forth in this decision. The motion is otherwise denied.

This decision constitutes the order of the court.

Dated: May 10, 2011


S U R R O G A T E Footnotes

Footnote 1:The papers submitted on this motion do not mention the distinction in these two statutes between attorney work product generally and material prepared in anticipation of litigation or trial as relevant to the resolution of this motion.

Footnote 2:With the exception of document number 21, all of these documents are dated after the May 6th instrument in question was executed. Document 21 does not relate to the preparation or execution of the May 6th instrument.

Footnote 3:Berman's privilege log notes that document numbered 18 was left intentionally blank by her.

Footnote 4:These documents list various persons and phone numbers and also contain statements about certain assets that may or may not have been decedent's. Given the limited information provided regarding these handwritten documents, the court cannot say with any certainty that they are unrelated to the preparation of the will.

Footnote 5:The tapes themselves have been demanded of proponents, but this motion to compel concerns only the subpoena duces tecum served on Berman, and there is no indication that the tape(s) or copies thereof are in her dominion or control. Berman does not currently represent proponents in this probate proceeding.