I was leafing through a dog-eared advance sheets and came across this well written Supreme Court case authored by Justice Rolando T. Acosta, which discusses the breadth of discovery permitted by defendant attorneys of successor attorneys once a legal malpractice action is started.
Plaintiff became a target of criminal and civil investigations by the SEC. He had previously engaged defendant attorney to serve as counsel on issues of trading stock shares at night.
After plaintiff ran into trouble with the SEC, it hired LeBoeuf Lamb to represent them in the investigation. A dispute over discovery in the legal malpractice action arose, and defendant attorney claimed the right to the LeBoeuf files. Plaintiff and LeBoeuf resisted.
Here the “at issue” doctrine came into play. Absent a waiver, the attorney-client privilege precludes review of the attorney-client communications and work product of the successor attorney.
It is usually held to be waived after an attorney malpractice action is started. Often, it is the defendant attorney who wants to disclose, and uses this waiver to its advantage. Here the situation is a little different, with the defendant attorney seeking successor’s file.
The “at issue” doctrine tries to determine whether successor’s communications and work product are at issue in the legal malpractice case or are outside of the legal malpractice case.
For a scholerly rendering of these questions, see: Goldberg v. Hirschberg,10 Misc.3d 292.