The Attorney-Client Privilege: It's Place in Legal Malpractice

Often times, the attorney-client relationship is noteworthy for the confidentiality which is imbued within communications between the parties. Thus, when a plaintiff files a legal malpractice action, certain privileges relating to representation are automatically waived. What those privileges are is not always the same. This issue is seen in an order fromO'Kinsky v. Perrone, CA: No. 10-6075, Memorandum Order (October 11 2012, E.D.P.A.).The case was a malpractice action filed against a defendant law firm, but did not include the lawyer who actually represented the plaintiff. During the ensuing deposition, defendants' attorneys asked questions of the plaintiff which were objected to on the basis of attorney-client privilege.

The attorney-client privilege has been enacted in order to protect the confidentiality of communications made for the purposes of representation. In order for communications to be given this status, they must be made without the presence of strangers for the purpose of securing legal advice. The questions of waiver regarded whether 1) filing a malpractice action alone is a waiver and 2) by partial disclosure of the legal advice in an email to 2 defendants.

The court found that the Plaintiff did not waive attorney-client confidentiality by filing the malpractice action. Generally, the privilege is waived when a plaintiff sues a former attorney related specifically to that representation. In this case, the Plaintiff did not file an action against his former attorney. The claim was against parties unaffiliated with the original attorney. Thus, when the defendants' attorneys asked questions in a deposition about this representation, relevance alone did not waive the privilege.

The other issue which the court was concerned with was the presence of a disclosure in an email sent to multiple defendants. During the negotiations of the underlying business dealings with defendants, the Plaintiff revealed his attorney's opinion that the business deal was a bad one. Based on the contents of the letter, the court granted a limited waiver of attorney-client privilege. The e-mail served as a waiver of only what was in that e-mail.

In not granting a full waiver, the court noted that often times plaintiffs disclose certain privileged materials in an attempt to both use the privilege as a shield and sword in litigation. In situations such as that, courts have recognized an implied waiver of attorney-client privilege. The waiver is implied because of the fairness doctrine which allows the court to prevent prejudice resulting from selective disclosure.

The court noted that the fairness doctrine is used when communications are during pending litigation. If a person discloses selectively before litigation, as the plaintiff did here, not purposely, but to advise plaintiffs that his attorney advised he not proceed with the deal does not count as selective disclosure. The plaintiff was not using the privilege to prejudice his adversaries' prejudice, and as a result, full disclosure would not be an equitable remedy.

This case does not directly impact the majority of legal malpractice cases. It is important to note that if there is a legal malpractice action, the disclosure made way before litigation will not affect attorney-client privilege for the most part. This will of course change if instead the privilege is claimed in an action against an attorney relating to their representation, because by bring the action, the privilege is waived.


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