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Referral services get confidentiality protection

California case led to changes

By: Bennett Loudon//August 29, 2018

Referral services get confidentiality protection

California case led to changes

By: Bennett Loudon//August 29, 2018//

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Gov. Andrew Cuomo last week signed a new law that provides attorney-client privilege to lawyer referral services.

Each year thousands of New Yorkers turn to the state’s 20 lawyer referral services (LRS) to help find an attorney for both civil and criminal matters. While providing information to LRS staffers about their case, those consumers often provide information that could be potentially damaging to their criminal or civil case if disclosed to opposing parties, experts say.

“Providing protection for communications between a lawyer referral service and a client has remained a key legislative priority of the New York State Bar Association,” said New York State Bar Association President Michael Miller.

Most people who rely on lawyer referral services for assistance assume the information they provide is confidential. The new law resolves any question about that confidentiality.

The legislation was developed in consultation with the state Bar Association’s Committee on Lawyer Referral Service and the New York City Bar Association.

The legislation signed Friday by Cuomo amends Judiciary Law Section 498 by adding a subdivision providing that communications between a lawyer referral service and a consumer is deemed privileged on the same basis as communications between an attorney and client.

The effort to amend the law started about 15 years ago when the San Francisco District Attorney subpoenaed the Bar Association of San Francisco’s Lawyer Referral and Information Service to find out what a criminal defendant may have said to BASF staff when he called for a lawyer referral.

BASF moved to quash the subpoena, claiming that the conversation was covered by lawyer-client privilege. The case was disposed of without disclosing the subpoenaed information and without any court decision.

That case prompted lawyers and referral services in California to work toward amending state law to extend the confidentiality to interactions between consumers and lawyer referral service staffers. California adopted its new law in 2013.

“That was the genesis of us taking a look at this,” Miller said.

“We then took a look at our rules related to confidentiality and felt that we, like California, needed to address this and resolve any question, or any potential question, about the confidentiality of communications with the various lawyer referral service offices,” he said.

Monroe County Bar Association Executive Director Kevin Ryan said the local Bar Association’s lawyer referral service has never been subpoenaed for such information.

“When we get a lawyer referral service call we need to find out some details about what the client’s matter is so we can refer them to the right person, and the concern was that there was information that could get revealed that would be disadvantageous for the opposing side to get access to,” Ryan said.

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