In legal malpractice litigation there is always the "prior" or "defendant" attorney and usually a "successor" attorney.  What discovery may entail between them, and what portion of the successor’s file may be disclosed?  Ingram Yuzek Gainen Carroll & Bertolotti, LLP v
Coden   2012 NY Slip Op 32741(U)   October 23, 2012  Supreme Court, New York County  Docket Number: 105841/09  Judge: Paul Wooten discusses this issue, as well as non-party discovery rules.

"Before the Court is a motion by defendants to disqualify Lewis on the basis that it violated CPLR sections  3107 an 3120(b) with respect to issuance of subpoenas on non parties and  hereby improperly and covertly obtained privileged and/or confidential documents from
defendant’s previous counsel Marc Weingard, Esq. (Weingard) of Weinberg, Gross & Pergament,
LP in the underlying action.

Lewis maintains that after receiving the J. Coden Authorization, and before issuing any
subpoenas, it contacted Weingard on January 3, 2011 via telephone to discuss obtaining
documents pursuant to the J. Coden Authorization and to inquire about the costs and timing of
production (see Lewis Opposition 14). According to Lewis, Weingard said he would be
contacting Patrick McHugh (McHugh), counsel for The Canine Fence, Co. in the underlying
action to advise that he had been asked to release documents which were under seal. On or
about January 13, 201 1 McHugh sent an e mail to Ronald Alensten, Esq. (Alensten), a member
of plaintiff, regarding the document production issues relating to the J. Coden Authorization, in
which Lewis maintains he mistakenly objects to the production of the documents pursuant to a
subpoena as it would violate the Protective Order (Lewis Opposition  16, 17)

Defendants maintain that Lewis served the subject subpoenas on January 13, 2011 and
failed to notify defendants until February 3, 2011, thereby violating CPLR  3107 and 3120(b),
which require notice to all adverse parties when such discovery devices are served on
nonparties (Notice of Motion, Coden Affirmation 11, 12). The subpoenas requested
Weingard’s entire file which was to be provided to Lewis on February 28, 201 1 , and the
subpoena scheduled Weingard’s deposition for March 28, 201 1 at 1O:OO a.m. (id. at 13, 14).
On February 9, 201 1 , J. Coden advised Lewis by letter that Fido’s Fences and Coden was not
willing to waive the attorney client privilege with respect to the subpoenaed attorneys, and they
also object to production of any documentation containing such privileged information (see
Notice of Motion, exhibit D). Defendants contend that no communication of any kind occurred
between it and Lewis regarding the subpoenas after February 9, 201 1 , and that the document
production date and deposition dated passed without any documents or information from either
Weingard or Lewis. It was J. Coden’s alleged understanding that Tufariello’s motion to quash
the Lewis subpoena stayed discovery against all nonparties.

In such cases where attorneys are proceeding against a former client, “disqualification
has been directed on a showing of ‘reasonable probability of disclosure’ of confidential
information obtained in the prior representation” (Saftler v Government Empls. Ins. Co., 95
AD2d 54, 57 [1st Dept 1983), citing Greene v Greene, 47 NY2d 477, 453 [1979]). Generally, in
such cases, an attorney will be disqualified where the party seeking that relief meets his burden
by establishing a substantial relationship between the issues in the litigation and the subject
matter of the prior representation, or where counsel had access to confidential material
substantially related to the litigation (see Saftler, 95 AD2d at 57; see also District Counsel 37 v
Kiok, 71 AD2d 587 [1st Dept 1979). However, disqualification will not be granted “where there
is no substantial relationship or where the party seeking disqualification fails to identify any
the issues in the litigation and the subject specific confidential information imparted to the attorney” (Saftler, 95 AD2d at 57)."

Defendants’ motion to disqualify Lewis as plaintiff’s counsel is denied. Defendants
meet their burden of establishing that a substantial relationship exists between the issues in this
litigation and the subject matter of the prior representation, as defendants herein assert a
counterclaim of legal malpractice against plaintiff relating to plaintiff’s representation of
defendants in the underlying action. Moreover it is undisputed that Lewis had access to
confidential material during its inspection of documents provided by Weingard. However,
defendants have failed to identify any specific confidential material imparted to Lewis (see
Saftler, 95 AD2d at 57) and how defendants are prejudiced by the production (see Ferolifo, 949
NYS2d at 363). Additionally, defendants’ belief that all nonparty discovery was stayed when
Tufariello filed her motion to quash is not supported in the record by any Court order or
stipulation."