The attorney client privilege is sacrosanct, no?  Well, not really.  Heth v Satterlee Stephens Burke & Burke LLP  2019 NY Slip Op 30555(U)  March 5, 2019  Supreme Court, New York County  Docket Number: 650379/2015  Judge: Andrew Borrok demonstrates what happens when the client possibly  discusses how attorney 1 is handling the case with attorney 2.

“As more fully set forth on the record, the “at-issue” waiver of the attorney-client privilege arises
where a party places the subject matter of privileged communications at issue, thereby making
invasion of the privilege necessary to assess the validity of a claim or defense, and where the
opposing party would be deprived of critical information absent a waiver of privilege (Deutsche
Bank Trust Co. of Ams. v Tri-Links Inv. Trust, 43 AD3d 56, 63 [1st Dept 2007]). In the context
of a legal malpractice action involving concurrent representation by the defendant and non-party
counsel in the same underlying litigation or transaction, New York courts have consistently
found that the privilege is waived with respect to communications with the non-party counsel
concerning the litigation or transaction (Goetz v Volpe, 11 Misc3d 632, 635 [Sup Ct, NY County 2006]). In such cases, communications with non-party counsel in connection with the
underlying action lose their privilege to the extent that they are relevant in establishing whether
the plaintiff relied on the advice of the non-party counsel and whether the plaintiff was harmed
as a result (IMO Indus., Inc. v Anderson Kill & Glick, P.C., 192 Misc2d 605, 609, 611 [Sup Ct,
New York County 2002]). ”

“Specifically, the disclosure of the communications between Messrs. Heth and Mellen is essential
to SSBB and Mr. Markham’s defense that any alleged reliance by Mr. Heth on legal advice
provided by SSBB and Mr. Markham did not proximately cause Mr. Beth’s alleged damages
(i.e., the theory being that Mr. Mellen provided deficient legal advice rather than SSBB and Mr.
Markham [or potentially, also provided deficient advice]). This disclosure is also critical to
SSBB’s and Mr. Markham’s defense that it was Mr. Mellen, not SSBB and Mr. Markham, who
represented Mr. Heth with respect to the March and December agreements, that Mr. Heth was
aware that any release from the March agreement needed to be in writing, and to defend against
the allegation that SSBB and Mr. Markham suppressed information from Mr. Heth regarding the
agreements. “

Print:
EmailTweetLikeLinkedIn
Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

 

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.