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Is whether or not a lawyer conveyed a pleading to his client protected by lawyer-client privilege?

Boston, MA |

I had filed a pleading in court and sent a copy to my wife's attorney on a Friday morning. On Monday, she filed an obviously retaliatory pleading unrepresented in another court. At that hearing, she stated that she had no knowledge of the pleading I filed the Friday prior and had not talked to her atty. I got her phone records and found she did, but atty is now saying that he will not, even under deposition, say wether he told her about my pleading I filed and he cites privilege. Am I correct to say that strategy IS privileged but a question as to whether he passed on a pleading of mine to her is not? Is admission of a document being received and passed to his client not fair game in a deposition? If I am correct, please cite case law or a link, etc. Thank you all for sharing.

Attorney Answers 4

  1. it is irrelevant whether she knew or not. Once you file a pleading and or send it to her lawyer, there is no privilege. As I understand your position, You will not find anything to support your interpretations.

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  2. You are going about this all wrong. If you served the lawyer, you have to have an affidavit or certificate of service to prove service. The sworn statement will serve to prove the time and date the lawyer was served. While I don't agree that the information is privileged (the "pleadings after all were sent to the attorney as a proxy---he is not party to the action, his client is), you will have a very hard time convincing a judge of your position, especially in a lower court.

    You can more successfully attack the concurrent filings. If you and your wife are in the midst of a divorce, she should have filed in the court where your action was proceeding---unless it was a RO. She can apply for emergency retraining order in any court of competent jurisdiction. If, as I suspect, your wife sought and obtained an RO after getting wind--by whatever means--of your new action (with or without justification), you have to scrutinize the affidavit that accompanied the Complaint for 209 A Order. You should be focusing on dismantling her affidavit rather than wasting time in a theoretical pursuit of severing privilege.

    I hope you are starting to realize that acting as your own counsel has its draw-backs.

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  3. By serving your wife's lawyer with your pleading, your wife is considered to have constructive notice of the pleading. It is not up to you to figure out whether or not her lawyer communicated that fact with her.

    As previously suggested, you can produce the certificate of service at a hearing on this matter to demonstrate service.

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  4. You will lose face, time, emotional energy, and money trying to outlawyer your spouses attorney. All of which opposing counsel is only too happy for you to do- you lose money, he/she gains- for a moot point. Ms Matta is dead on. Best of luck to you.

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