The New York Court of Appeals has referred to the attorney-client relationship as “one of the most sensitive and confidential relationships in our society.”1 As such, New York courts generally respect the attorney-client privilege with regard to confidential communications between a client and attorney for the purposes of rendering legal advice, as well as the work product privilege applicable to materials prepared in connection with and in anticipation of litigation. There are, of course, exceptions. For example, when otherwise privileged information is disclosed to a third party, a waiver of the privilege would likely be found to have occurred.2
Similarly, New York courts hold that the privilege is waived where the substance of the legal advice is put at issue in a case, whether as part of the plaintiff’s claims or as part of an affirmative defense. As demonstrated in a number of recent Commercial Division cases, if reliance on privileged materials is needed to prove the claim or defense, the courts usually will find that the privilege has been waived.3 As discussed below, however, the relevance of privileged materials to a claim or defense is not the determining factor in at-issue waivers; rather, the privileged materials must be directly at issue in the case.
Legal Malpractice Cases
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