Legal Malpractice Complaint’s Allegations Did Not Waive Privilege in Related Action

On November 1, 2022, the First Department issued a decision in 2138747 Ontario Inc. v. Lehman Bros. Holdings, Inc., 2022 NY Slip Op. 06087, holding that the allegations in a legal malpractice complaint did not waive the attorney-client privilege in a related action, explaining:

Defendant Lehman’s motion to compel plaintiff to produce certain communications and documents that had been withheld, on the basis of attorney-client privilege, should have been denied. Plaintiff’s conduct in bringing a legal malpractice claim against its former counsel, Goodmans, did not trigger the at issue waiver doctrine with regard to plaintiff’s breach of contract claim against defendant Lehman. An at-issue waiver of the attorney-client privilege occurs where a party affirmatively places the subject matter of its own privileged communication at issue, such as by asserting a claim or defense that the party intends to prove by use of the privileged material.

While plaintiff has waived the attorney-client privilege as to any information that has already been revealed in the pleadings of the malpractice claims against Goodmans, there is no subject matter waiver as a result of these limited disclosures. The advice of counsel is not at issue in plaintiff’s breach of contract claims against defendant Lehman. Nor is this a case where the holder of the privilege affirmatively seeks to use privileged communications while preventing his adversary from examining the remainder of the communications. Thus, the attorney-client communications cited by plaintiff, in the pleadings of the malpractice claims, against Goodmans did not waive plaintiff’s attorney-client privilege as to any confidential communications withheld.

(Internal quotations and citations omitted).

Stay informed!
Sign up for email alerts and notifications here.
Read more about our Complex Commercial Litigation practice.