Successive Attorneys and Privilege
Client retains Attorney 1 who is said to commit legal malpractice, and then retains Attorney 2 to try to help fix the problem, and later, to sue Attorney 1. What communications between client and Attorney 2 are privileged. in Roberts v Corwin 2012 NY Slip Op 32403(U) September 10, 2012
Supreme Court, New York County Docket Number: 115370-2009 Judge: Marcy S. Friedman we see an interesting analysis. "The attorney-client privilege is waived “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 the party’s claim or defense, and application of the privilege would deprive the opposing party of vital information.” (Veras Invs. Partners, LLC v Akin Gump Strauss Hauer & Feld LLP, 52 AD3d 370, 373 [lst Dept 20081.) “[That a privileged communication contains information relevant to issues the parties are litigating does not, without more, place the contents of the privileged communication itself ‘at issue’ in the lawsuit; if that were the case, a privilege would have little effect. . . . Rather, ‘at issue’ waiver occurs when the party has asserted a claim or defense that he intends to prove by the use of privileged materials.” (Deutsche Bank Trust Co. of Americas v Tri-Links Inv. Trust, 43 AD3d 56,64 [lst Dept 20071 [internal quotation marks and citations omitted].)"
"It is well settled that “an attorney-client relationship is established where there is an explicit undertaking to perform a specific task. While the existence of the relationship is not dependent upon the payment of a fee or an explicit agreement, a party cannot create the relationship based on his or her own beliefs or actions.” (Pellegrino v Oppenheimer & Co., 49 AD3d 94,99 1st Dept 20081; Jane St. Co. v. Rosenberg & Estes. P.C., 192 AD2d 451 [lst Dept.], Iv denied 82 NY2d 654 .) An attorney-client relationship may thus exist prior to execution of a formal retainer. Indeed, an attorney-client relationship “can encompass a preliminary consultation even where the prospective client does not ultimately retain the attorney.” (Pellegrino, 49 AD3d at 99.)
Under these circumstances, in which plaintiff retained Epstein Becker to correct Greenberg Traurig’s malpractice and thereby to attempt to avoid a malpractice action, the court cannot find that preliminary consultations, in which malpractice may have been discussed, were undertaken “with a view toward retention” of Epstein Becker for malpractice litigation. (See generally Pellegrino, 49 AD3d at 99.) The court finds, however, that the documentary evidence, including that reviewed b
camera, shows that plaintiff began to consider a malpractice action in earnest after plaintiffs
motion to vacate the unfavorable award was denied by order of this Court (Moskowitz, J.), dated
April 3, 2007. It is undisputed that Mr. Roberts circulated a conflicts check at Epstein Becker,
dated May 30,2007, with himself as the client, and sought to have a client-matter number assigned. (July 5, 2012 ’Tr. at 13-14; P.’s Privilege Log [Ex. I, to Reardon Aff.].) As plaintiff acknowledges, these events coincide with Epstein Becker having “switched” from giving advice
consistent with the continuing arbitration to “direct strategic advice about what to do about a
malpractice claim.” (&July 5,2012 Tr. at 13-14.)"