Court Orders In Camera Submission Of Assertedly Privileged Documents In Legal Malpractice Action To Resolve Threshold Question Of Attorney-Client Relationship

On January 31, 2025, Justice Melissa A. Crane resolved a motion to compel by directing in camera production of certain documents to inform a threshold inquiry as to whether or not plaintiffs and defendants had an attorney-client relationship. Genesis REOC, Company, LLC v. Poppel, Index No. 156733/2017.

Plaintiffs sued the defendant law firm (Peckar & Abramson PC) and lawyers (Stuart D. Poppel and Charles E. Williams) for malpractice, alleging that defendants, while acting as plaintiffs’ counsel, had participated in a scheme to divert funds owed plaintiffs to another of defendants’ clients (Huston). Defendants asserted privilege as to their communications with Huston, and plaintiffs moved to compel.

Justice Crane limited discovery to documents going to the question of whether plaintiffs had an attorney-client relationship with the defendants, because the only remaining claim was for legal malpractice and that claim could proceed “only if defendants were actually plaintiffs’ attorneys.” Genesis REOC, p. 2.

As the Court explained:

The only engagement letter the court is aware of is Poppel’s engagement letter with Karim Hutson. That letter indicates that Poppel was to represent “Genesis Companies, LLC” which the complaint alleges is one of Hutson’s companies (Amended Complaint EDOC 64 ¶ 47). However, although there is no engagement letter specifically with any of the plaintiffs, other documents raise serious concerns that defendants did take on the representation of plaintiffs. It is clear from these documents that the defendant lawyers provided legal advice to Andrew Stone, the principal behind Genesis REOC and the other plaintiff entities. It is also clear that defendants intended for Stone to rely on them for legal advice.

. . . the documents so far reflect that defendants provided plaintiffs with legal advice and did nothing to disabuse plaintiffs that they were not plaintiffs’ counsel. Yet defendants deny that relationship and hide behind privilege to shield documents concerning the threshold issue of whether or not plaintiffs were their clients in the first instance. This is impermissible because it is the use of privilege as a sword and a shield. The documents already in the record raise sufficient concerns about the nature of the relationship between the parties to justify an in camera review.

Id., pp. 2-3, 5.

Any production of documents going beyond the question of whether plaintiffs and defendants had an attorney-client relationship was not warranted until the “serious threshold issue -- namely whether or not defendants really were plaintiffs’ attorneys” had been resolved. Id., p. 2.

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