Brooklyn Tabernacle v Holland & Knight LLP 2024 NY Slip Op 31979(U) June 6, 2024 Supreme Court, Kings County Docket Number: Index No. 520533/2020 Judge: Leon Ruchelsman presents a fairly restricted view of the recurring question of what communications between Plaintiff and successor attorneys are discoverable in a legal malpractice claim against predecessor counsel.

“The plaintiff is a non-denominational Church located at 17 Smith Street in Kings County. According to the complaint this lawsuit asserts the defendant committed legal malpractice and breached its duty to the plaintiff regarding a series of real estate transactions. Specifically, the Church is the owner of a condominium unit located nearby at 180 Livingston Street in Kings County. The plaintiff -Sought to develop that property and on December 17, 2014 hired the defendant to provide legal services to help the plaintiff with “complex transaction” (see, Verified Complaint, ‘7 [NYSCEF Doc. No. 1]); The transaction consisted of a series of steps l whereby the plaintiff would transfer the unit to an entity called That 18.0 Livingston LLC, a subsidiary of Thor.”

“The defendant now seeks communications between the plaintiff and Starr. The defendant asserts they have the right to discover the communications between Starr and the plaintiff and whether such communications can minimize or . . completely eliminate any malpractice alleged against them. The plaintiff opposes: the motion arguing that any communications between Starr and the plaintiff are privileged and are protected by the attorney-client privilege.”

“The attorney-client privilege ”exists to ensure that one seeking legal advice will be able to confide fully and freely in his attorney, secure in the knowledge that his confidences will not later be exposed to public view to his embarrassment or legal detriment” (Matter of Priest v. Hennessy, 51 NY2d 62 431 NYS2d 511 [1980]). A waiver of the attorney-client privilege may be found when the client places the subject matter of any attorney client communications in 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” (see.,Kinqston Check Cashing Corp., v. Nussbaum Yates Berg Klein & Wolpow, LLP, 2.18 AD3d 760, 194. AD3d 495 (2d Dept., 2023J) . Thus, the attorney-client privilege is waived when a client asserts a malpractice claim against its former attorney (Buxton v. Ruden, 12 AD3d 47,5, 784 NYS2d 619 [2d Dept., 2004]). However, a defendant attorney may not obtain communications .from the plaintiff’s current counsel (see, Jakobleff v. Cerrato. Sweeney and Cohn, 97 AD3d 834, 468 NYS2d 895 [2d Dept., 1983]).”

“However, those cases have adopted a definition of the “at issue” waiver .doctrine that is ·far too broad,. According to those cases, any communication between counsel that is relevant is thereby waived; “But privileged information may be in some sense relevant ~n any lawsuit” (In re County of Erie, 54 F3d 222 [2d Cir. 2008]). Therefore, the privilege is only waived “where a party affirmatively places the subject matter of its own privileged communication at issue in the litigation, so that invasion of the privilege is required to determine the validity of a claim or defense o:E the party asserting the privilege, and application of the thereby waived; “But privileged information may be in some sense relevant in any lawsuit” (In re County of Erie, 54 F3d 222 [2d Cir. 2008]). Therefore, the privilege is only 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 a claim or defense of the party asserting the privilege, arid application of the privilege would deprive the adversary of vital information” (see, Deutsche Bank Trust Company of Americas v. Tri-Links Investment Trust, 43 AD3d 56, 837 NYS2d 15 [1st Dept,, 2007]). “