Lesia R. James et al. v. Linda Thomas, Esquire

Summary

The United States District Court for the Western District of Kentucky grants Plaintiffs’ motion to compel production of communications involving Thor Himley in a legal malpractice action concerning the estates of Oleh and Janice Koropey. The court holds that Defendant Linda Thomas failed to establish that the communications were protected by the attorney-client privilege under Kentucky law, because she did not show that Himley was acting as Janice Koropey’s representative for the predominant purpose of obtaining legal advice. Defendant was ordered to produce the requested communications within fifteen days.

Holdings

1. A power of attorney does not categorically shield all communications between the attorney and the attorney-in-fact. The attorney-in-fact must have been acting as the principal's representative and facilitator of legal advice, and the communications must otherwise fall within the attorney-client privilege.
2. Defendant failed to establish that the communications between Thomas and Himley were privileged because she did not show that Himley was acting on Janice's behalf, that the communications related to legal services, or that obtaining legal advice was their primary or predominant purpose.
3. The court did not need to decide whether Himley waived any privilege by disclosing a substantive legal communication because Defendant failed to establish that the communications were privileged in the first place.

Questions Presented

1. Whether communications between Defendant and Thor Himley after Himley received a power of attorney from Janice Koropey were categorically protected by the attorney-client privilege.
2. Whether Defendant met her burden to establish, on a document-specific basis, that the requested communications were confidential communications made primarily to obtain legal services on Janice's behalf.
3. Whether Plaintiffs' asserted privilege waiver required resolution when Defendant failed to establish that the privilege applied in the first instance.

Disposition

other