It is generally known and accepted that a client who sues its attorney waives the attorney-client privilege as to the alleged malpractice the client has placed at issue in the litigation.¹
The easiest examples of “at issue” waiver concern communications between the client and attorney, as well as the documents reflecting the attorney’s work in the underlying matter at issue. But what happens when the client retains successor counsel to take over the representation and to sue the first attorney? In the malpractice lawsuit, is the defendant-attorney entitled to obtain in discovery the communications between the client and successor counsel, and if so, to what extent? What about communications reflecting the advice successor counsel gives the client in the underlying lawsuit if the defendant-attorney believes that advice was questionable and led to, for example, an unnecessarily bad settlement?
Continue Reading Does Privilege Apply to Communications Between a Legal Malpractice Plaintiff and Its New Attorney in the Underlying Lawsuit? Caselaw Update, a Hypothetical and Some Practice Pointers to Consider for the Client, Defendant and Successor Counsel