If you file a legal malpractice claim in Massachusetts, beware that what you think may be attorney client privileged communications, may not be privileged at all! In a recent Boston legal malpractice case, a technical motion regarding what was “discoverable” resulted in a huge loss of privacy and attorney client privilege for the client.
Lawyers Weekly staff writer, Eric T. Berkman wrote: “Neil Burns, a legal-malpractice lawyer in Boston who was not involved in the case, said the decision simply shows that a malpractice plaintiff ‘can’t have his cake and eat it, too.’ By logical extension, Burns said, “any subsequent attorney representing the plaintiff regarding the same divorce action should be required to provide information regarding communications and work product.”
Here is what happened following a divorce: The husband hired a new attorney and filed Complaint for Modification of the divorce. The Probate Court rejected that motion, stating that the divorce was final and could not be modified. Ultimately, the husband filed a malpractice claim against his first divorce lawyer. In such cases, the law is clear: you have waived your attorney client privilege with respect to that lawyer, so he or she can defend himself. In this case, however, the first divorce lawyer, filed “discovery” requests against the second divorce lawyer – requesting access to the file, including attorney work product and any attorney client privileged documents. The husband objected, citing the attorney client privilege. The husband’s argument was that the Complaint for Modification and the Divorce were “two completely separate actions.” There was no Massachusetts law, however, to back him up. The Superior Court Judge hearing the case held that the husband’s second lawyer was required to testify as to the conversations and produce documents.
Thus, clients in legal malpractice cases must be thoroughly confident that any and all lawyers that represented them in a matter they now want to file a claim about, are likely to be required to give testimony about that representation. We have found that divorce cases in particular are difficult for findings of legal malpractice. This is because most divorces, like the one in this case, end with a written Separation Agreement. The judge puts the husband and wife under oath and asks a series of questions relating to whether the parties have had an opportunity to read the agreement, whether they understand the agreement, if they have any questions, and are confident that their counsel explained everything. Thus, there is a record that is hard to later go against when a client says they didn’t “understand” the advice of their lawyer, or there was too much “pressure” to settle.