Attorney fees are an endless source of conflict.  They have always been an endless source of conflict.  We faintly remember from high school that Abraham Lincoln was involved in attorney fee litigation.  Today is no exception.  inLanda v Blocker ;2011 NY Slip Op 00191 ;Decided on January 11, 2011 ;Appellate Division, Second Department  we see attorney fees in the matrimonial law arena.
Although we do not know (and the decision avoids discussion) of how the 22 NYCRR 1200 et seq rules impact this matrimonial attorney fee issue, we see defendant’s legal malpractice case gutted.

"The Supreme Court properly denied the defendant’s motion for summary judgment dismissing the amended complaint, but it should also have denied that branch of the plaintiff’s motion which was for summary judgment on the first cause of action to recover on an account stated.

The plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the first cause of action by tendering invoices for services rendered prior to December 5, 2006, setting forth his hourly rate, the billable hours expended, and the particular services rendered, and establishing that the defendant signed such invoices, failed to timely object to the invoices, and made partial payments thereon (see Landa v Dratch, 45 AD3d 646, 648; Landa v Sullivan, 255 AD2d 295). In opposition, however, the defendant submitted her own affidavit, which was sufficient to raise a triable issue of fact as to whether she acquiesced in the correctness of the invoices (see Interman Industrial Products, Ltd. v R.S.M. Electron Power, Inc., 37 NY2d 151, 153-154; Rodkinson v Haecker, 248 NY 480, 485). "
 

"The Supreme Court properly granted that branch of the plaintiff’s separate motion which was for summary judgment dismissing the defendant’s counterclaims, among other things, to recover damages for legal malpractice. Although an attorney’s affirmation may serve as an expert opinion establishing "[a] basis for judging the adequacy of professional service" (Zasso v Maher, 226 AD2d 366, 367), here, in opposition to the plaintiff’s prima facie showing of entitlement to judgment as a matter of law, the attorney’s affirmation submitted by the defendant was insufficient to raise a triable issue of fact as to whether the plaintiff was negligent in his representation of her in the underlying matrimonial action (see Scartozzi v Potruch, 72 AD3d 787, 788-789). Moreover, in opposition to the plaintiff’s prima facie showing, the defendant failed to raise triable issues of fact with respect to her other counterclaims."

Client suffers injury, client suffers (same or different) financial stresses and filed a petition in bankruptcy.  Effect is that client loses claim of injury to the bankruptcy estate, and may no longer bring the action.  Eventually, client is discharged in bankruptcy and sues the professional.  The case will be dismissed, for lack of standing.  So it is in, Valerie Sotille,  v. James D. Mullin, D.D.S.,  019694/06; Supreme Court, Nassau County.
 

"On May 11, 2004 plaintiff as debtor filed a voluntary petition seeking relief from her creditors pursuant to Chapter 7 of the Bankruptcy Code. On June 25, 2004 the bankruptcy trustee filed his report of no distribution, the matter was discharged on September 3, 2004 and terminated on October 25, 2004 (Bankruptcy Court, E.D.N.Y. Case No. 804-83123).

Upon learning of the action at bar, the trustee sought to re-open plaintiff/debtor’s case to allow the pursuit of this malpractice action for the benefit of the estate (see 11 U.S.C. 350 (b) and 101 et seq.). Such an application would include all claims and causes of action which the debtor knew or should have known about and which have accrued as of the date of the debtor’s bankruptcy filing.

Subsequently, the Hon. Dorothy T. Eisenberg re-opened the bankruptcy petition permitting the trustee to administer an undisclosed asset.

The action at bar was marked in stay status pending the Bankruptcy Court’s above determination. Now that the trustee by special counsel (who was plaintiff’s original attorney) is authorized to act on behalf of the bankruptcy estate in this Court, the action has been restored to active status, including defendant’s instant application.

The question before the Court at this juncture is whether plaintiff in her individual capacity had standing to commence the malpractice lawsuit in the first instance. If she was not due to the bankruptcy filing, the complaint must be dismissed with no possibility of the bankruptcy trustee pursuing the action as an asset since the statute of limitations has expired (CPLR 214-a and 205 (a); see Reynolds v. Blue Cross, 210 AD2d 619).

Plaintiff’s bankruptcy estate opposes defendant’s motion to dismiss, arguing that defendant’s dental treatment was rendered both before and even after the Chapter 7 petition was filed on May 11, 2004. Thus the issue of plaintiff’s so-called failure to disclose this claim to the trustee is not fatal because treatment had not ceased before the bankruptcy application was discharged on September 3, 2004.

This argument is unpersuasive."

 

Typically a claim of breach of fiduciary duty involving an attorney will be an afterthought, or an alternative pleading, sometimes a duplicitive one, sometimes an independent cause of action.  Rarely does it stand alone.  Here, an attorney is accused of aiding a ponzi scheme, and really big numbers are involved.  As Nolene Walder of the New York Law Journal writes:

"Nearly two years after the arrest of a hedge fund manager for cheating investors out of $20 million, a New York lawyer has become ensnared in the fallout from the scheme.

In a civil suit filed last week in Manhattan Supreme Court, the Alexander Dawson Foundation claims that hedge fund manager Mark Bloom, the owner of North Hills L.P., "received assistance" from three accountants as well as attorney Victor M. Rosenzweig, who served as the director of North Hills Management LLC, a general partner of the hedge fund.

The complaint, among other things, accuses Mr. Rosenzweig, who is of counsel at Olshan Grundman Frome Rosenzweig & Wolosky, of breach of fiduciary duty.According to the suit, the foundation lost more than $9.75 million as a result of the fraud, the bulk of which was intended to be used to educate school children."Had Plaintiffs been made aware of Bloom’s fraud in June or July 2005, they would have withdrawn from the Fund immediately," the complaint alleges.

Thomas J. Fleming of Olshan Grundman, who represents Mr. Rosenzweig, vigorously denied the allegations  .In 2009, Mr. Bloom pleaded guilty in the Southern District to five counts, including securities fraud and mail fraud.According to the foundation, accountant Robert M. Graber of Davis, Graber, Plotzker & Ward was retained to audit the fund’s annual financial statements for the years ending in 2001-03 and gave the fund a "clean opinion," in spite of the fact that the records contained information relating to Mr. Bloom’s scheme.

Even after Mr. Graber learned that Mr. Bloom had withdrawn $8 million from the fund without documentation, the accountant "personally reassured the trustees" of Alexander Dawson Inc., the investment arm of the foundation, of the fund’s "sound financial condition and failed to disclose Bloom’s conduct," the complaint says.

Peter J. Larkin of Wilson Elser Moskowitz Edelman & Dicker, who represents Mr. Graber and his accounting firm, said his clients denied the allegations and would vigorously defend the case going forward.

The foundation also alleges that Brian Zucker of the accounting firm of Zucker & Associates "provided substantial assistance to Bloom’s fraud by preparing materially false schedule K-1s."

Stephen Jacobs of Landman Corsi Ballaine & Ford, who represents Mr. Zucker, said in an interview that the claims against Mr. Zucker and his firm were completely without merit.
 

Ripeness in legal terms means that a dispute is so fully developed that a court might determine the rights and liabilities of the parties.  This issue arises in legal malpractice settings because the underlying case (the case within a case) is not always finished or fully litigated.  When the underlying case is not yet fully finished, courts sometimes hold that the legal malpractice case is not yet ready to be heard, or is unripe.

In SHEILA FINCH,  v. TOOHER, WOCL & LEYDON, LLC, and TOOHER & WOCL, LLC, ; CIVIL ACTION NO. 3:10-cv-713(CFD); UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT;2010 U.S. Dist. LEXIS 136958;December 28, 2010 we see the following:

"On May 23, 2008, plaintiff Sheila Finch’s son, James Avalone, was arrested in Stamford, Connecticut. In an attempt to conceal drugs from the police, Avalone ingested the morphine and methadone tablets he was carrying. Avalone died of the overdose in his cellblock at the Stamford Police Department that day. On May 28, 2008, Finch signed an agreement with Tooher, Wocl & Leydon ("the firm") who agreed to investigate the case and, if appropriate, file a civil suit against the Stamford Police Department relating to the death of her son. The firm never brought a lawsuit, and Finch hired a second lawyer, John Williams. With her new counsel, Finch filed this action for legal malpractice and breach of contract against the firm on May 10, 2010, and also a suit against the City of Stamford for violating the civil rights of James Avalone in connection [*2] with his death. Finch v. Stamford, No. 3:10-cv-748 (D.Conn.) (Kravitz, J.) "

"Although the resolution of the case before Judge Kravitz may have an impact on the quantity of damages Finch may be able to recover from the firm, this suit is nevertheless still ripe for review now. The Connecticut Supreme Court, in Mayer v. [*4] Biafore, Florek and O’Neill, noted that while "all legal malpractice cases are based on underlying rights," to "require that the underlying dispute as to those rights, in all cases, must be completely resolved prior to bringing a malpractice action would unduly restrict the plaintiff’s remedy against the allegedly negligent lawyer." Mayer, 245 Conn. 88, 92, 713 A.2d 1267 (1998). "

Partnerships and LLCs, real estate and plans to make a lot of money often unravel, and do so in messy ways.  Here, in Shapsis v Kogan ; 2011 NY Slip Op 50014(U) ; Decided on January 7, 2011 Supreme Court, Kings County ; Demarest, J.  we see the tail end of the proceedings, after a US District Court case and personal injury cases have concluded.  Quite a lot of money was at stake.
 

We’ll leave the partnership and LLC matters to others, but plaintiffs also sued the partnership attorneys on a mixed theory of legal malpractice in the way they proceeded with the cases and with a generalized conflict of interest.  The case against the attorneys founders on the lack of privity of the individual clients; it may have succeeded if the LLC had brought the case.

"Plaintiffs’ third cause of action alleges a breach of fiduciary duty by the Sklavos [*6]defendants, seeking damages against them. In order to state a prima face case for a breach of fiduciary duty, " a plaintiff must prove the existence of a fiduciary relationship, misconduct by the defendant, and damages that were directly caused by the defendant’s misconduct’" (Guarino v North Country Mortg. Banking Corp., 2010 WL 5095476 [2nd Dept 2010] quoting Kurtzman v Bergstol, 40 AD3d 588, 590 [2d Dept 2007]). "[W]here. . . the plaintiff’s claims of breach of fiduciary duty are essentially claims of legal malpractice, they are governed by the same standard [for legal malpractice]" (Boone v Bender, 74 AD3d 1111, 1113 "

"Here, plaintiffs’s third cause of action must be dismissed outright as plaintiffs have only alleged that the Slavos defendants were retained by 2417 Ocean Avenue, and thus owe the plaintiffs a fiduciary duty, failing to adequately allege the existence of a fiduciary duty between the Sklavos defendants and the plaintiffs themselves as individuals. It is clear that the Sklavos defendants had no duty to disclose any conflict, if one in fact existed, to the plaintiffs as none of them were represented by the Sklavos defendants or listed as individual parties in either the Mikucki action or the Bouri action. Instead of alleging that a fiduciary duty existed between the Sklavos defendants and themselves, plaintiffs assert an improper derivative claim on behalf 2417 Ocean Avenue, alleging that Sklavos failed to advise 2417 Ocean Avenue that it had no liability for the personal injury lawsuits instituted against it and failed to disclose the conflict of interest created by the Sklavos defendants’ simultaneous representation of 2417 Ocean Avenue and IBM. Although members of an LLC are permitted to bring derivative claims on behalf of the LLC (see Tzolis v Wolff, 10 NY3d 100 [2008]), here, two of the plaintiffs are not even members of the LLC and lack standing to bring a derivative action. Moreover, all three of the plaintiffs seek relief for themselves as individuals instead of relief for the LLC.

Plaintiffs also fail to adequately plead the remaining elements of the cause of action. They do not allege that the Sklavos defendants failed to successfully represent 2417 Ocean Avenue and prevail in the actions or that the LLC incurred damages. Plaintiffs only allege that 2417 Ocean Avenue paid a disproportionate share of the legal fees and settlement costs incurred by both it and IBM, but do not dispute that the Mikucki action was resolved in 2417 Ocean Avenue’s favor, and that no judgment was issued against 2417 Ocean Avenue in the Bouri action. Thus, the third cause of action is dismissed in its entirety. "

The last cause of action "is inadequate as they have failed to allege the existence of an attorney-client relationship between the Sklavos defendants and plaintiffs individually and have failed to submit a retainer agreement or describe the terms of an existing oral agreement. Plaintiffs have only alleged that Shapsis and Malishkevich sat in on some meetings with Sklavos, among others, related to the organization of 2417 Ocean Avenue and that Shekhets is member of 2417 Ocean Avenue, which was represented by Sklavos. These allegations fail to adequately plead the existence of an express agreement between the Sklavos defendants and the plaintiffs to perform legal services. "

 

We write that legal malpractice issues are everywhere, and might surface in any setting.  Here is a story from the National Law Journal about a 35 year old missing will of Mama Cass, and whether the attorneys who had it in their files were negligent in not producing it back when it counted.

Leigh Jones reports: ‘The siblings of Mama Cass are suing Mitchell, Silberberg & Knupp, claiming that a will recently discovered in the law firm’s archives shows they were cheated out of a share of the dead singer’s estate 35 years ago.

The suit alleges that Mitchell Silberberg in 1967 prepared a will for Ellen Naomi Cohen, a member of the 1960s quartet The Mamas & The Papas, but that the firm told relatives when she died that a will could not be found.

The estate of Ms. Cohen, popularly known as Mama Cass Elliot, was distributed according to California intestate law, which, the plaintiffs allege, deprived them of part of the estate. Mama Cass died in 1974 at age 33 in a London hotel room from an apparent heart attack."
 

"Mitchell Silberberg responded to requests for comment in an e-mail. "Plaintiffs’ allegation that MSK concealed the existence of a will is utterly absurd," the firm said. "There are no facts that support plaintiffs’ allegation that MSK lost the will, breached its fiduciary duty or made any misrepresentations whatsoever about the existence or whereabouts of the will." It added that the lawsuit was barred by the statute of limitations.

The lawsuit claims malpractice, negligent misrepresentation and fraud. It alleges that the law firm knew that a will existed but represented that it did not. It also alleges that the firm had conflicts of interest in simultaneously representing the estate and Mama Cass’ creditors."
 

Plaintiff says that this is not a legal malpractice case, but it is the death knell of a well known and long lived law firm in New York City.  150 Broadway N.Y. Assoc., L.P. v Shandell ;2011 NY Slip Op 30009(U); January 3, 2011; Supreme Court, New York County; Docket Number: 601950/09; Judge: Judith J. Gische discusses the story of what happens when a law firm closes.

"Plaintiff was the landlord for Shandell Blitz Blitz & Bookgon, LLP (SBSSB) which later became known as Shandell Blitz Blitz & Ashley, LLP (“Shandell Ashley”). Eventually the firm fell into arrears on its rent and plaintiff brought a nonpayment proceeding against SBB&B. Plaintiff obtained a money judgment against SBB&B for $257,378.72. The action at bar seeks to enforce the judgment the attorneys who personally guaranteed SBB&B’s obligations under the lease."

"Plaintiff has asserted a claim for “an accounting of prior monies received” against Shenwick, based on claims that Shenwick and Berenson (the CPA) “received various monies and properties belonging to [SBBSB and/or Shandell Ashley] without accounting” and that Berenson and or Shenwick distributed the funds “arbitrarily, unreasonably and capriciously to the detriment and harm of the Plaintiff.” Stating that it has only received a single payment of $5,000 payment, plaintiff states that it is entitled to a “pro-rata distribution of all the monies collected to date by Berenson and Shenwick”

"Plaintiff does not squarely identify its claim against Shenwick as being for circumstances, an attorney is not liable to third parties for caused by professional negligence (Ch ipello v. Nixon Harqrave et al., 15 AD3d 894 [4* Dept 20051). Furthermore, unless the attorney placed his or her own interests above that of his or fiduciary, the attorney is not liable for breach of fiduciary duty to a third party with whom s/he is not in privity (Chinello v. Nixon Harqrave et a I,, supra). Breach of Fiduciary Duty, on the other hand, is a tort. In deciding whether there is a fiduciary relationship, the a court will look to see “whether a party reposed confidence in another and reasonably relied on the other’s superior expertise or knowledge” (Wiener v. Lazard Freres & Co., 241 A.D.2d 114, 12 [I9981 ). It is unrefuted that Shenwick was hired to assist Shandell Ashley in winding up its affairs and the partnership was his client (see Gaillard Realtv v. Man hattan Brass,  38 AD 84 [Ist Dept 1991). This is clearly stated in the Notice of Dissolution that -Shandell Ashley sent to plaintiff and other creditors. The Notice identifies Berenson as the liquidating agent and Shenwick’s firm as the par ,,iership’s attorneys. All of Shenwick’s interaction with plaintiff was as an attorney with the law firm acting on behalf of Shandlel Ashley. Even assuming Shenwick answered any of the liquidation agent’s legal inquiries, Shenwick provided such advice, direction, etc., on behalf of his client, Shandell Ashley, not for the particular benefit of the plaintiff or any other creditor. There is no claim by plaintiff that Shenwick acted out of self interest (Chinello v. Nixon Hargreve et al., supra).
Any claim by plaintiff that it had a fiduciary relationship with Shenwick is without any factual basis, since Shenwick and plaintiff did not have a relationship based upon confidence."

There are conflicting rules in the 4 departments of New York. In legal malpractice, it is plaintiff’s obligation to demonstrate that a hypothetical judgment could be collected in a legal malpractice case in the 2d, 3d and 4th departments. In the First Department, it is an affirmitive defense for defendant to prove.

Here is a procedural case from the 4th Department on the issue. Williams v Kublick
2007 NY Slip Op 04932 Decided on June 8, 2007 Appellate Division, Fourth Department .

"We conclude that Supreme Court erred in granting defendants’ motion, and we therefore modify the order accordingly. In granting the motion, the court determined, inter alia, that defendants established as a matter of law that plaintiff is unable to prove that defendants’ [*2]negligence is a proximate cause of plaintiff’s damages (see Robbins v Harris Beach & Wilcox, 291 AD2d 797, 798). That was error."

"A necessary element of a cause of action for legal malpractice is the collectibility of the damages in the underlying action (see McKenna v Forsyth & Forsyth, 280 AD2d 79, 82-83, lv denied 96 NY2d 720; cf. Lindenman v Kreitzer, 7 AD3d 830, 835). Here, regardless of whether the value of the property was improperly considered by the experts, we conclude that the otherwise conflicting opinions of the experts concerning the value of the assets of the joint venture precluded the court from determining as a matter of law that defendants established that plaintiff is unable to prove that he could collect damages in the underlying lawsuits (see generally Simmons v State Farm Mut. Auto. Ins. Co., 16 AD3d 1117; Herzog v Schroeder, 9 AD3d 669, 670)."

 

The Curtis law firm bills itself as "the only law firm[s] in the United States" to concentrate their practice on "representing clients injured by attorneys."   In this US District Court case we see legal malpractice attorneys suing legal malpractice attorneys under a very unconventional theory of law.

CURTIS & ASSOCIATES, P.C. and W. ROBERT CURTIS, Sc.D., J.D., Plaintiffs, – against – THE LAW OFFICES OF DAVID M. BUSHMAN, ESQ.; DAVID M. BUSHMAN, ATTORNEY AT LAW; DAVID M. BUSHMAN, ESQ.; JANET TURANSKY CALLAGHAN; STEVI BROOKS NICHOLS; JEFFREY LEVITT, ESQ.; JEFFREY LEVITT, ATTORNEY AT LAW; HERBERT MONTE LEVY, ESQ.; LAW OFFICES OF HERBERT MONTE LEVY, ESQ.; JOHN DOE, ESQ.; LAW OFFICES OF JOHN DOE, ESQ.; JANE DOE, ESQ.; LAW OFFICES OF JANE DOE, ESQ.; and EILEEN DEGREGROIO,

Its a 43 page decision, but we’ll try to cut to the chase here. "This understanding — that the alleged RICO predicate acts are no more than "litigation activities" alone — brings into focus plaintiffs’ rather striking theory of the case. Plaintiffs essentially allege that any client with the impudence to contest the Curtis Law Firm’s legal fees, and further, to litigate in court that client’s obligation to pay those fees or challenge through a malpractice action the professional conduct of the Curtis Law Firm, and any attorney who represents such a client, is a racketeer and liable for treble damages. The gravamen of the Complaint is thus that defendants’ have violated RICO by defending against plaintiffs’ fee claims or initiating malpractice [*44] actions against plaintiffs and thereby forcing plaintiffs to litigate allegedly "phony" and "frivolous" lawsuits in state court. This theory cannot withstand a motion to dismiss because it fails to state a claim upon which relief may be granted.

First, persuasive authority in this and other jurisdictions suggests that the litigation activities alleged in this Complaint cannot properly form the basis for RICO predicate acts. See, e.g., Gunn v. Palmieri, No. 87-cv-1418, 1989 WL 119519, at *1 (E.D.N.Y. Sept. 29, 1989), aff’d, 904 F.2d 33 (2d Cir. 1990), cert. denied, 498 U.S. 1049, 111 S. Ct. 758, 112 L. Ed. 2d 777 (1991) (rejecting "untenable" interpretation of RICO which would permit litigation activities to be construed as RICO predicate acts). Thus, on similar facts, a number of courts have found that allegations such as those here more properly may be classified as claims sounding in abuse of process 21 or malicious prosecution. 22 See, e.g., Daddona v. Gaudio, 156 F. Supp. 2d 153, 162 (D. Conn. 2000) (finding allegations "at best amount to vague abuse of process or malicious prosecution claims" where complaint lists "a [*45] variety of ‘predicate acts,’ all of which involve the filing of complaints and other legal documents"); Nakahara v. Bal, No. 97-cv-2027, 1998 U.S. Dist. LEXIS 825, at *20-21, *27 (S.D.N.Y. Jan. 30, 1998) (finding that plaintiffs’ mail and wire fraud claims are at most "a potential yet still inchoate claim for malicious prosecution or abuse of process" where "the gravamen of [plaintiffs’] Complaint . . . is patently directed at [the defendant’s] filing of, or participation in, the various legal actions pending against [plaintiffs]"); Von Bulow v. Von Bulow, 657 F. Supp. 1134, 1140-42 (S.D.N.Y. 1987) (finding that the "essence of the stated [fraud] claim" sounds in malicious prosecution where plaintiffs’ allegations "closely parallel[ed] the elements of malicious prosecution claim).
 

Further, and even more compelling than the persuasive authority discussed above, plaintiffs’ claims must be rejected because finding otherwise – and allowing malicious prosecution claims such as those attempted to be alleged here to suffice as RICO predicate acts – would lead to absurd results. First, if routine litigation activities such as defending against a fee claim or prosecuting a malpractice action against a former attorney is a violation of RICO, then almost every state or federal action could lead to corollary federal RICO actions. See Kashelkar v. Rubin & Rothman, 97 F. Supp. 2d 383, 392 (S.D.N.Y. 2000) ("Garden-variety pleading errors and the filing of routine motions do not constitute RICO predicate acts. To hold otherwise would turn every state court lawsuit into a predicate for a subsequent federal RICO action."). Plaintiffs’ interpretation of RICO is untenable and would result in the inundation of federal courts with civil RICO [*50] actions that could potentially subsume all other state and federal litigation in an endless cycle where any victorious litigant immediately sues opponents for RICO violations. See, e.g., Gunn, 1989 WL 119519, at *1 ("If serving and filing an answer or a motion by any defendant . . . could be considered . . . [a RICO predicate act], this Court would be flooded with motions to amend complaints by plaintiffs seeking to add RICO claims based upon mail fraud and obstruction of justice as soon as an answer was served. Such an interpretation of the RICO statute is untenable."

Leviton Manufacturing is a huge manufacturer of electrical and electronic items, and regularly patents new inventions.  Here, in LEVITON MFG. CO., INC.,  -against- GREENBERG TRAURIG LLP, et al.,09 Civ. 8083  UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK,  2010 U.S. Dist. LEXIS 12884;9  ( December 6, 2010)  Magistrate Judge Katz decides whether successor attorneys may be questioned about attorney-client conversations.
 

"The attorney-client privilege affords confidentiality to communications among clients and their attorneys for the purpose of seeking and rendering an opinion on law or legal services, or assistance in some legal proceeding, so long as the communications were intended to be, and were in fact, kept confidential."

"The attorney-client privilege may be waived. Although Defendants’ rely primarily upon federal law in arguing the issue of waiver, Leviton correctly argues that it is New York law that provides the [*7] law of decision for Leviton’s claim of legal malpractice. See Chin v. Rogoff & Co., P.C., No. 05 Civ. 8360 (NRB), 2008 U.S. Dist. LEXIS 38735, 2008 WL 2073934, at *4 (S.D.N.Y. May 8, 2008) ("when a discovery dispute involves an attorney-client relationship with a New York attorney, New York privilege law applies"). Nevertheless, the parties cite both New York and federal law in support of their positions, and appear to hold the view that there is no material difference in New York and federal law on this issue. (See Pl.’s Br. at 2.)

Under Second Circuit law, waiver of attorney-client privilege may occur,when a client testifies concerning portions of the attorney-client communication, . . . when a client places the attorney-client relationship directly at issue, . . . and when a client asserts reliance on an attorney’s advice as an element of a claim or defense.
    In re County of Erie, 546 F.3d 222, 228 (2d Cir. 2008) (quoting Sedco Int’l S.A. v. Cory, 683 F.2d 1201, 1206 (8th Cir. 1982)). Courts have recognized that a party need not explicitly rely upon advice of counsel to implicate privileged communications. Instead, advice of counsel may be placed in issue where, for example, a party’s state of mind, such as his [*8] good faith belief in the lawfulness of his conduct, is relied upon in support of a claim of defense. Because legal advice that a party received may well demonstrate the falsity of its claim of good faith belief, waiver in these instances arises as a matter of fairness, that is, it would be unfair to allow a party to "use[] an assertion of fact to influence the decisionmaker while denying its adversary access to privileged material potentially capable of rebutting the assertion." John Doe Co. v. United States, 350 F.3d 299, 306 (2d Cir. 2003); accord County of Erie, 546 F.3d at 229; see also Bilzerian, 926 F.2d at 1292; von Bulow, 828 F.2d at 103; Am. S.S. Owners Mut. Prot. and Indem. Ass’n v. Alcoa S.S. Co., 232 F.R.D. 191, 199 (S.D.N.Y. 2005).

As the Second Circuit has cautioned, however, determinations of fairness must be decided on a case-by-case basis, in the specific context in which the privilege has been asserted, rather than on the basis of generalizations. See John Doe, 350 F.3d at 302. Moreover, in the Erie decision, the Second Circuit reined in what it perceived to be an overbroad invocation of the fairness doctrine, based on principles set forth in Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975). [*9] Under the Hearn standard, an implied waiver or forfeiture of privilege would be found if:
(1) assertion of the privilege was a result of some affirmative act, such as filing suit by the asserting party; (2) through the affirmative act, the asserting party has put the protected information at issue by making it relevant to the case; and (3) the application of the privilege would have denied the opposing party access to information vital to the defense.
Id. at 581. In Erie, the Second Circuit concluded that simply because privileged information is relevant to a claim or defense in the case does not give rise to an implied waiver; rather, to forfeit privilege, "the party must rely on privileged advice from his counsel to make his claim or defense." Erie, 546 F.3d at 229. The court declined, however, to specify what degree of reliance is required."