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January 2016 Archives

Papa Don't Breach...The Custody Agreement

For the past several weeks, the custody dispute surrounding Rocco, the fifteen year old son of Madonna and Guy Ritchie, has garnered significant attention in the media. Notwithstanding the inevitable hype due to the celebrity status of this former power couple, the issues surrounding this case are particularly interesting due to the international forces at play. That is, Madonna is a resident of New York while Guy Ritchie lives in England. After Rocco refused to visit with Madonna for the holidays, a New York Judge ordered that he return to her.

Attorney-Client Privilege and Duty of Confidentiality

The attorney-client privilege entitles a client to refuse to testify and prevent his or her attorney from testifying in court regarding communications between them. It also applies to confidential communications made by an individual to an attorney who is sought out for the purpose of obtaining legal advice. In order to be privileged, the communication must be between the client and the attorney for the purpose of obtaining legal advice and with the expectation the communication would remain private. Disclosure of such communications to or in the presence of third parties destroys the confidential nature of the communication and renders such communications non-privileged.

Health Insurance Portability and Accountability Act of 1996 (HIPAA) and Family Law

In general, HIPAA governs the confidentiality of medical records and regulates how certain health information can be used or disclosed by certain persons and entities while protecting patient privacy. Issues related to confidential medical records and health information often arise in family law matters. Judges are frequently called upon to weigh the privacy interests of a party against the best interests of the children. In addition to HIPAA, New Jersey case law has historically emphasized the importance of protecting a party's privacy, while at the same time underscoring the importance of balancing the competing interests at hand before ordering a party to produce his or her medical records and information.

Attorney's Work Product Protection

New Jersey Court Rule 4:10-2(c) provides protection against disclosure to the work product of a party's attorney prepared in anticipation of litigation, including the "attorney's mental impressions, conclusions, opinions or legal theories." A party may obtain such materials from an adverse party only upon a showing that the party has a substantial need for the materials and is unable, without undue hardship, to obtain the substantial equivalent by other means. The fundamental test of applicability of the work product privilege is whether the materials sought to be discovered were prepared in anticipation of litigation rather than in the ordinary course of business.