Attorneys are hired and fired, and new attorneys take over.  Almost by definition, the new attorneys take on cases that have already been handled, either well or badly by predecessors.  How does this affect later communications with the client, especially in a legal malpractice setting?

in Soussis v Lazer, Aptheker, Rosella & Yedid, P.C.;2010 NY Slip Op 32991(U);October 12, 2010
Supreme Court, Nassau County;Judge: Anthony L. Parga the situation is that plaintiff had several causes of action, and at least one of them was still alive and could be pursued when attorney 2 took over.  Settlement discussions between plaintiff and attorney 2 took place, and when attorney 1 was sued, they wanted to look at the communications.
 

"Regarding privilege (t)he burden of establishing any right to protection is on the par tyasserting it; the protection claimed must be narrowly construed; and its application must be
consistent with the purose of the underlying immunty. Spectrum Systems Intern. Corp. v
Chemical Ban, 78 NY2d 371 , 377 (1991). The plaintiffs commlmications with her successor
attorney regarding the settlement of her claim undoubtedly fall within the attorney-client privilegeand are accordingly not subject to disclosure absent a waiver by the plaintiff. See CPLR 4503(a)(1); Lue v Finkelstein & Partners. LLP, 67 AD3d 1187, 1188 (2 Dept. 2009), citing Raphael v Clune White & Nelson, 146 AD2d 762, 763 (2 Dept. 1989); Jakobleffv Cerrato. Sweeney & Cohn
AD2d 834, 835 (2 Dept. 1983). Merely by commencing suit against (her) former attorneys, the
plaintiffhas not placed in issue privileged communications with (her 1 attorney who represented (her in the settlement.’ " Lue v Finkelstein & Parners. LLP. supra, at p. 1188- 1189, quoting Raphael v Clune White & Nelson supra, at p. 763. However, the privilege is waived where the "client places the subject matter of the privileged communication at issue or where invasion of the privilege is required to determine the validity of the client’s claim or defense and application of the privilege would deprive the adversary of vital information (emphasis added). Jakobleffv Cerrato. Sweeney & Cohn. supra, at p. 835 citing People v Edney, 39 NY2d 620 (1976); Cornell v Bernstein-Macaulay.Inc., 407 F.Supp. 420 (SDNY 1976); Heam v Rhay, 68 FRD 574 (ED Wash 1975); see also Deutsche Bank Trust Co. of Americas v Tri-Links Inv. Trust, 43 AD3d 56, 64 (1 sl Dept. 2007) .
(T)hat a privileged communication contains information relevant to issues the paries are litigating
does not, without more, place the contents of the privileged communication ‘ at issue ‘ in the lawsuit;
     if that were the case, a privilege would have little effect." Deutsche Bank Trust Co. of Americas v
Tri-Links Inv. Trust supra at p. 64, citing Long Is. Light. Co. v Allianz Underwiters Ins. Co. 301
AD2d 23, 33 (1 sl Dept. 2002); see also Veras Investment Parners. LLC v Akin Gump. Strauss
Hauer & Feld LLP, 52 AD3d 370, 374 (1 sl Dept. 2008). "Rather at issue ‘ waiver occurs ‘ when the
pary has asserted a claim or defense that he intends to prove by use of the privileged materials.
Deutsche Bank Trust Co. of Americas v Tri-Links Inv. Trust supra, at p. 64, citing North Riv. Ins.
Co. v Columbia Cas. Co. , 1995 WL 5792 (SDNY 1995) (citations omitted); Manufacturers &
Traders Trust Co. v Servotronics. Inc. , 132 AD2d 392, 397 (4th Dept. 1987); see also Veras
[* 4] Investment Parners. LLC v Akin. Gump. Strauss Hauer & Feld LLP supra, at p. 374. "There is no at issue ‘ waiver where the party asserting privilege ‘ does not need the privileged documents to
sustain its cause of action. ‘ "Carl v Cohen, 23 Misc3d 111 O(A) (Supreme Cour New York County
2009), quoting Manufacturers & Traders Trust Co. v Servotronics. Inc. supra, at p. 397; Deutsche
Bank Trust Co. of Americas v Tri-Links Investment Trust. supra at p. 64. "A client also waives the
attorney-client privilege by placing the subject matter of a counsel’ s advice in issue and by making
selective disclosure of such advice. IMO Industries v Anderson Kil & Olick. P. , 192 Misc2d 605
(Supreme Court New York County 2007), citing Orco Ban v Prosteinas DelPacifico, 179 AD2d 390
(1 sl Dept. 1992).