Sometimes, side issues in a legal malpractice seem to predominate, and even lead to appellate proceedings.  One might think that a frank discussion of whether or not the attorney departed from good practice would be in everyone’s interest, but in Corrieri v Schwartz & Fang, P.C.   2013 NY Slip Op 03797   Decided on May 28, 2013   Appellate Division, First Department  the case is all about trying to push plaintiff’s counsel out of the picture.
 

"Defendants seek to defend against plaintiffs’ claims of negligent representation in a probate and accounting proceeding by compelling discovery of privileged communications between plaintiffs and the counsel who substituted for defendants in that proceeding and who represents plaintiffs in this legal malpractice action. The court properly denied the motion to compel because there is no merit to defendants’ argument that the filing of this malpractice action placed the subject matter of the privileged communications "at issue." The invasion of the privilege is not required to determine the validity of plaintiffs’ malpractice claim, and the application of the privilege does not deprive defendants of information vital to their defense (see Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 62 AD3d 581 [1st Dept 2009]; Veras Inv. Partners, LLC v Akin Gump Strauss Hauer & Feld LLP, 52 AD3d 370 [1st Dept 2008]). Nor was there a partial, selective disclosure of privileged communications such that the privilege was waived (see Orco Bank v Proteinas Del Pacifico, 179 AD2d 390 [1st Dept 1992]).

The court properly denied defendants’ motion to disqualify plaintiffs’ counsel, as [*2]defendants failed to show that counsel’s testimony would be necessary to establish the claim or defense (see East Forty-Fourth St. LLC v Bildirici, 58 AD3d 542 [1st Dept 2009]). "