Legal Malpractice

Subsequent Attorneys, Privilege and Legal Malpractice

By (Andrew Lavoott Bluestone)

Plaintiff sells meat, made loans to a restaurant and its owner.  It was partially repaid, over many years by the restaurant, which added a payment to the meat bills.  All things end, and the owner of the meat company died; then the restaurant went under.  Meat company went to the attorneys and asked them to start a suit.  We see the outcome in Empire Purveyors, Inc. v. Brief Justice Carmen & Kleiman LLP, ; Supreme Court, New York County, NY Slip Op 2009  32752.

This case alleges that one of the attorneys lied to the client for years, and claimed that an action had been commenced, when none had actually been started.  "Plaintiffs contend that Cook misled them about work done on the matter by falsely representing that a lawsuit was commenced against Weinberg, a judgment obtained and that collection efforts were underway.  In a companion law suit [with the same parties] plaintiffs allege that the attorney converted funds returned from their landlord, and violated Judiciary Law 487.

To what extent can plaintiff's subsequent attorney be disqualified, and to what extent may plaintiff's communications with subsequent counsel be discovered?  In this case, to no extent. 

Defendants seek discovery on what the attorney tried to do to fix the problems of missing documents, to ameliorate the consequences of defendant's alleged misconduct, the failure to obtain written acknowledgment of the restaurant's indebtedness and the litigation strategy.

Justice Solomon of Supreme Court, New York County  determined that the party seeking disqualification "bears the burden of showing the taint or unfairness arising from the lawyer's testimony in this Case, that the attorney is likely to be called as a witness and that the testimony is necessary."

More to the point, the testimony about communications must be relevant to this lawsuit (it must be "at issue"), under Jakobleff v. Cerrato, Sweeney and Cohn, 97 Ad2d 834 (3d Dept, 1983),  Here, Justice Solomon determined that it was not 'at issue."

Full post as published by New York Attorney Malpractice Blog on December 01, 2009 (boomark / email).