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JOHN DOE, PLAINTIFF, v. PETER POE ET AL., DEFENDANTS, RONNIE WEIL, NON-PARTY RESPONDENT, BANK IN FEDERAL ACTION, ET AL., NON-PARTY APPELLANTS.

92 N.Y.2d 864, 700 N.E.2d 309, 677 N.Y.S.2d 770 (1998).
July 1, 1998

2 No. 111

[98 NY Int. 0090]
Decided July 1, 1998


This opinion is uncorrected and subject to revision before publication in the New York Reports.

Scott A. Edelman, for non-party appellants.
John Amrod, for non-party respondent.

MEMORANDUM:

The order of the Appellate Division should be affirmed, with costs.

The facts relevant to this appeal are set forth in an opinion in an earlier appeal to the Appellate Division ( see, Doev Poe, 189 AD2d 132), and in the Appellate Division's memorandum decision in this appeal (___ AD2d ___).

Supreme Court's refusal to unseal the record of the hearing it conducted in the earlier related proceeding was premised on the erroneous assumption that the record may contain privileged information. The Appellate Division correctly determined that the communications and documents in question are not protected by the attorney client privilege inasmuch as an attorney, Mr. P., attended the meetings in a non representative capacity. Communications between a client and an attorney made in the presence of third parties are not privileged ( see, People v Harris, 57 NY2d 335, 343, cert denied, 460 US 1047). Appellants, in opposition to the application to unseal the record at Supreme Court, failed to submit any proof to support their claim that Mr. P. was acting as an attorney or an agent for the Bank at either of the meetings in question. We have reviewed appellants' remaining contentions and conclude that they are without merit.

* * * * * * * * * * * * * * * *

Order affirmed, with costs, in a memorandum. Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine, Ciparick and Wesley concur.

Decided July 1, 1998