November 12, 2009
A worker injured in a fall from a scissor lift retained a law firm to sue K-Mart, where the incident had taken place. The claims were lost in K-Mart's bankruptcy,allegedly due to the failure of the law firm to properly preserve them. The injured worker then retained new counsel and proceeded against the lessor of the scissor lift on theories of product liability and negligence. The case was settled on the eve of trial for $235.000. A lawsuit alleging malpractice by the first firm was then filed.
At the deposition of the client, questions were asked about communications between the client and the second firm concerning the settlement of the claims against the lessor. The defendant law firm appealed the trial court's determination that the communications were protected by the attorney-client privilege.
The trial court's holding was affirmed by the New York Appellate Division for the Third Judicial Department. Citing a similar prior case that had upheld the privilege claim, the court concluded:
We are unpersuaded that the presence of a settlement less than the full amount of insurance, or any of the other circumstances asserted by defendants, compels a contrary conclusion in this case.
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