When You File A Legal Malpractice Claim, You Waive Your Attorney Client Privilege!

What are the things you need to careful of when filing a legal malpractice claim?  One thing the Massachusetts Appeals Court made clear (again) is that you are waiving your attorney client privilege as against the attorney you are now suing for malpractice.

That is, just because your former attorney was negligent, if there are facts in the underlying case that would or could have gone against you in the underlying case, those facts may now come out and alter the expected results of your new, legal malpractice, case

Underlying Criminal Case

The facts of the underlying cases here are that Mr. Doe was charged with sexually abusing a foster child in his care in criminal court.  While Attorney Stone represented him, Mr. Doe confided to his attorney that he had sexually assaulted a second foster child.  Mr. Doe plead guilty to charges regarding the first child.

Civil Case Relating to the Criminal Case Results in Default and Damages Award

The victim filed suit in civil court against Mr. Doe.  Doe retained Attorney Stone to defend him in the civil case.  Unfortunately, for some reason Attorney Stone neglected the case and a default was entered against Mr. Doe for failing to respond to discovery – answering interrogatories.  As assessment of damages hearing was held and $400,000 were assessed against Mr. Doe.

Legal Malpractice Case for Allowing Default

Next, Mr. Doe brought a legal malpractice case against his attorney, H. Ernest Stone.  Stone had American Guaranty malpractice insurance.  American retained Wilson Elser to defend Attorney Stone.  The malpractice defense was partially based on investigating the facts surrounding the abuse of the second foster child.  Wherefore, the case was settled resolving all claims as of the date of filing the malpractice case, however, Mr. Doe left open claims resulting from the litigation of the malpractice claims – the way the case was handled, specifically, insurance defense counsel’s revealing the confidential discussion about abuse of the second foster child.

Malpractice Decision by Appeals Court

In John Doe v. American Guaranty and Liability Co., Ernest Stone and George Rockas, Massachusetts Appeals Court Docket Number 16-P-183 (2017), the Appeals Court determined that the operating factor was whether “the disclosure is relevant, material, or necessary to defend against the [malpractice] charge.”  See Commonwealth v. Woodberry, 26 Mass. App. Ct. 636, 637 (1988), citing Commonwealth v. Brito, 390 Mass. 112, 119 (1983).  Wherefore, the defense was that a properly litigated case by competent counsel could have brought in the second victim to testify, which would likely have resulted in verdict against Mr. Doe.  Thus, the trial Court dismissed Mr. Doe’s case against his attorney.

Mr. Doe, in the Appeal, claimed that his attorney, and the insurance defense attorney and insurance company, had no right to reveal the attorney client privileged information about the abuse of the second foster child.  The Appeals Court agreed with the trial judge and allowed the dismissal.

Legal Malpractice and Confidential Information

The lesson here is clear albeit not new law:  when considering filing a lawsuit against your prior attorney, understand that she or he has had access to all documents from your case; she or she has likely memorialized conversations with you and other key witnesses; she or he may now be incentivized to more thoroughly investigate (what they neglected to do before).  Anything and everything that mitigates against your underlying case, if it “is relevant, material, or necessary” to defending your former attorney in the malpractice case, can and will likely come into evidence and be a factor in the case.

Wherefore, when working with legal malpractice counsel, be sure to provide as much information as possible.  Bad facts can be dealt with much better with preparation with your legal malpractice attorney.

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