Legal Malpractice

Privilege, At Issue Communications and Legal Malpractice

By (Andrew Lavoott Bluestone)

Legal Malpractice cases frequently involve a series of attorneys, each of whom comments or gives advice concerning the acts of a predecessor.  When will these communications be protected and when will the protection be waived ?  A simple answer would be that all communications are protected, forever.  The wise commentator amongst us knows that some communications will be protected, and some placed "at issue," and thus lose their attorney-client privilege.

Here, in Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP ; 2009 NY Slip Op 04099 ; Decided on May 26, 2009 ; Appellate Division, First Department we see a well reasoned discussion of the difference. 
 

"We find no merit to defendant's argument that privileged materials relating to and created after commencement of the Doctor's Hospital Action have been put "in issue" by this litigation and are therefore discoverable. Such argument fails to recognize that nothing that plaintiff's attorneys could have said or done in the prior lawsuit could have possibly affected plaintiff's reliance on defendant's allegedly erroneous advice given years earlier in connection with the [*2]formation of the D5 Trust. " At issue' waiver of [the attorney-client] privilege occurs where a party affirmatively places the subject matter of its own privileged communication at issue in litigation, so that invasion of the privilege is required to determine the validity of a claim or defense of the party asserting the privilege, and application of the privilege would deprive the adversary of vital information" (Deutsche Bank Trust Co. of Ams. v Tri-Links Inv. Trust, 43 AD3d 56, 63 [2007]). While any communications between plaintiff and its attorneys in the Doctor's Hospital Action that evaluated defendant's prior advice in the allegedly bungled D5 Trust transaction are certainly relevant to the issue of defendant's alleged malpractice, plaintiff disavows any intention to use such communications and defendant fails to show that any such communications are necessary to either plaintiff's claim or its defense (see id. at 64 [relevance alone insufficient to put privileged materials "at issue"; "if that were the case, a privilege would have little effect"]; see also Veras Inv. Partners, LLC v Akin Gump Strauss Hauer & Feld LLP, 52 AD3d 370, 374 [2008]). "

Full post as published by New York Attorney Malpractice Blog on May 27, 2009 (boomark / email).