Legal Malpractice

Matrimonial Disclosure Rules in Legal Malpractice

By (Andrew Lavoott Bluestone)

Is discovery in legal malpractice limited by the NY matrimonial rules?  This recent case Kodsi v Gee ,2008 NY Slip Op 06938; Decided on September 18, 2008;  Appellate Division, First Department  holds that there are some limits.
 

"Domestic Relations Law § 235(1) mandates that all papers filed in a matrimonial matter be designated as confidential. That did not require the court, in this legal malpractice action, to issue an order protecting from outside disclosure all documents requested by defendants that were submitted in connection with the underlying divorce action. The instant malpractice action alleges that defendants failed to secure an uncontested divorce, causing plaintiff to sustain substantial economic damages. The shield afforded by § 235 must, in this instance, give way to the disclosure of relevant evidence needed for the defense against such claims, including records filed in the divorce proceeding that may provide evidence to rebut plaintiff's contentions of liability and the extent of his financial loss (see Janecka v Casey, 121 AD2d 28 [1986]).

The court did abuse its discretion, however, to the extent it denied an order to protect the confidentiality of plaintiff's tax returns — specifically, his federal and state returns and W-2 statements for the years 2002-2007. Given the policy disfavoring disclosure of tax returns (see Williams v New York City Hous. Auth., 22 AD3d 315 [2005]), plaintiff's cross motion should have been granted (see e.g. Foley v Kaplan, 162 AD2d 155 [1990]). "

Full post as published by New York Attorney Malpractice Blog on September 23, 2008 (boomark / email).