Legal Malpractice

Privilege, Wavier and Legal Malpractice

By (Andrew Lavoott Bluestone)

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."
 

Full post as published by New York Attorney Malpractice Blog on January 05, 2011 (boomark / email).