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Looking Behind the Veil: "At Issue" Waiver of the Attorney-Client Privilege in Malpractice Cases

Wednesday, April 3, 2013 12:30 PM to 1:30 PM
Boston Bar Association - 16 Beacon Street, Boston, MA


A lawyer or law firm represented a client in an underlying transaction or lawsuit.  At some point, the client replaced the lawyer or firm with new counsel, who completed work on the case.  Unfortunately, the client is unsatisfied with the result of the case and has sued his or her original lawyer or law firm for malpractice.

You represent the lawyer or firm in the malpractice case.  And you think that successor counsel's files and his or her communications with the client might contain helpful evidence.  You serve a subpoena on successor counsel seeking to uncover his or her communications with the client.  The former client and successor counsel both assert the attorney-client privilege. 

In these circumstances, are you entitled to discover successor counsel's file and his or her communications with the client notwithstanding that they might otherwise be privileged?  In this program, we will grapple with this question by discussing the applicable precedent, including some recent Massachusetts decisions.


Sponsoring Section/Committee(s):




Jennifer Jones


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