Wednesday, June 27, 2012

No Privilege Waiver For New Counsel's "Ill Advised" Statements

A recent opinion from the New York Appellate Division for the First Judicial Department holds:

In this personal injury action arising from a pedestrian knockdown,
plaintiff's prior counsel moved for a hearing on the amount of the charging
lien, if any, that the firm was entitled to. Opposing that motion, incoming
counsel made allegations of misconduct, and argued that the alleged misconduct
should result in prior counsel's loss of any lien. At the close of a sealed ex
parte hearing, at which plaintiff testified, Justice Williams determined that
incoming counsel's allegations were unfounded and directed that a hearing on the
amount of prior counsel's lien would be held at the resolution of the case. In
subsequent motion practice, wherein outgoing counsel sought an order reducing
Justice Williams' oral directives to a signed order, defendants demanded a copy
of the transcript, arguing that they were entitled to any information which may
show that plaintiff's deposition testimony was inaccurate or incomplete.

Plaintiff did not waive her attorney-client privilege here by placing her
communications "at issue.". Plaintiff's communications with prior counsel were raised only in the context of a fee dispute between attorneys, which had nothing to do with her suit against defendants. Further, there is no evidence that plaintiff consented to, or was even aware of, incoming counsel's ill-advised statements, made solely for the purpose of freeing the file of any charging lien, and not in furtherance of his client's claim or interests.

Similarly, plaintiff's attorney-client privilege was not waived under the
crime-fraud exception, since the motion court, following a hearing, determined that no such misconduct had occurred. Any inquiry into whether the court improperly exercised its discretion in reaching that conclusion is precluded by the fact that this Court was not provided with a copy of the sealed transcript for review. It was defendants' obligation, as appellants, to assemble a proper record on appeal, including taking the initiative to make the sealed transcript available to this Court. Similarly, a determination as to whether third parties may have been present,
defeating plaintiff's privilege, an argument defendants themselves admit is
speculative, is impossible to reach absent a review of the transcript of the
hearing. (citations omitted)

(Mike Frisch)

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