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