Court Faces “Catch-22 Problem” Of Whether To Order Production Of Privileged Documents To Plaintiff Claiming Legal Malpractice Where Disputes Remained Over Whether Plaintiff Was Actually Attorneys’ Client

On January 31, 2025, Justice Melissa A. Crane ordered in camera review of certain purportedly privileged documents in a legal malpractice case, noting that conflicting contentions over whether the plaintiff was ever actually a client of defendants presented a “catch-22 problem.” In Genesis Reoc Company LLC, et al. v. Stuart D. Poppel, et al., Index No. 156733/2017, the plaintiff alleged that the defendants were their former attorneys and sued for malpractice. The attorneys had represented other parties in the underlying transactions at issue, and during discovery, they withheld communications with those clients on the basis of privilege. The attorneys also contended that the plaintiff had never actually been a client of theirs. The Court ordered in camera review to address the threshold question of whether an attorney-client relationship existed, explaining:

[T]his motion presents somewhat of a catch-22 problem. This is because, whether plaintiffs are entitled to the documents turns on whether they were a client of defendants, yet, the proof of whether plaintiffs were clients could very well depend on some of the documents defendants want to shield as privileged. . . . [T]he 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.

The attorneys at Schlam Stone & Dolan frequently advise clients concerning discovery obligations and privilege. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning such issues.