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

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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.

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Attorney answers 4

Posted

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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Asker

Posted

Perhaps i did not state the facts sufficiently. I filed a complaint for contempt in family court and then she filed an obviously retaliatory RO in another court. The issue is, she stated that she was unaware of the contempt and that she had not spoken to her lawyer on the day I filed and emailed him the contempt. Once i got her phone records, they showed otherwise. So I asked her attorney if he did in fact convey it to her and he refuses to answer citing priviledge. I plan to depose him as her knowledge of the complaint is the crux of the issue here. I appreciate all the other advice but I am asking a narrowly focused question. Is whether or not he told her about the complaint prior to her filing for the RO priviledged?

Henry Lebensbaum

Henry Lebensbaum

Posted

Maybe I did the same. Her lawyer is covered by an attorney-client privilege. You need to fight the RO separately and if it is without sufficient foundation, this will be your case. If you have telephone records, and you wish you can depose her, understanding that you will need permission from the court.

Posted

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.

This answer is provided for informational purposes only and it is not intended as legal advice. Additionally, this answer does not create an attorney-client relationship. If you wish to obtain legal advice specific to your case, please consult with a local attorney

Asker

Posted

Perhaps i did not state the facts sufficiently. I filed a complaint for contempt in family court and then she filed an obviously retaliatory RO in another court. The issue is, she stated that she was unaware of the contempt and that she had not spoken to her lawyer on the day I filed and emailed him the contempt. Once i got her phone records, they showed otherwise. So I asked her attorney if he did in fact convey it to her and he refuses to answer citing priviledge. I plan to depose him as her knowledge of the complaint is the crux of the issue here. I appreciate all the other advice but I am asking a narrowly focused question. Is whether or not he told her about the complaint prior to her filing for the RO priviledged?

Estela Matta

Estela Matta

Posted

Your facts are clear to me. You are still on the wrong track. You cannot breach the attorney-client privilege. Don't waste time on it. Phone records will never get admitted into evidence in a lower court proceeding like the District court's. There are no depositions in lower court proceedings. Focus on what can be done, as I've advised.

Estela Matta

Estela Matta

Posted

"the day I filed and emailed him the contempt." You have no effectuated proper service on the attorney. Unless you have a court order that allows for "alternative form of service" you have to have a sheriff or constable serve the party or their attorney, prepare an affidavit of service and file that with the court. A Complaint for Contempt must be personally served.

Philip W. Mason

Philip W. Mason

Posted

While your question is narrowly focused the answer lies not within this forum, but in the eyes of the presiding judge whom you must convince that the communication is not privileged. Presenting that argument will be difficult, costly and time consuming. For an understanding of what the argument will entail please see: 1) http://www.lawlib.state.ma.us/source/mass/rules/sjc/sjc307/rule1-6.html , and 2) http://www.massbar.org/publications/massachusetts-law-review/2003/v87-n4/the-attorney-client-privilege-in . Attorney Matta has very competently and astutely provided you with an efficient and effective alternative way of attacking the RO, without resorting to an overly burdensome and legalist path that has only a marginal chance of success.

Estela Matta

Estela Matta

Posted

Thank you, Attorney Mason. I would add that the lower court is not going to entertain such argument (about privilege). The District Court's jurisdiction in domestic relations retraining orders is a very limited jurisdiction, it is an expedited proceeding with limit evidenciary and procedural perview.

Philip W. Mason

Philip W. Mason

Posted

Agreed - It is unlikely that the deposition subpoena would even be enforced let alone the privilege argument entertained! But, more importantly - have a happy new year!

Estela Matta

Estela Matta

Posted

Thank you--same to you and yours. :-)

Posted

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.

I am licensed to practice law in New Hampshire and Massachusetts. This response is based on limited information, is general in nature, does not constitute legal advice, is intended for educational purposes only, and does not create an attorney-client relationship. In short, I am not your lawyer just because I responded to your post. You should not rely on any advise given on AVVO. Rather, if you have a specific legal question or problem, you should retain a lawyer licensed in your state to answer or address your legal question or problem. IRS Circular 230 Notice: Any U.S. tax advice contained in this post is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

Asker

Posted

Perhaps i did not state the facts sufficiently. I filed a complaint for contempt in family court and then she filed an obviously retaliatory RO in another court. The issue is, she stated that she was unaware of the contempt and that she had not spoken to her lawyer on the day I filed and emailed him the contempt. Once i got her phone records, they showed otherwise. So I asked her attorney if he did in fact convey it to her and he refuses to answer citing priviledge. I plan to depose him as her knowledge of the complaint is the crux of the issue here. I appreciate all the other advice but I am asking a narrowly focused question. Is whether or not he told her about the complaint prior to her filing for the RO priviledged?

Estela Matta

Estela Matta

Posted

Attempting to vacate the RO on the basis of retaliation, by showing service of the Contempt action, is not a winning strategy. The lower court will focus its review on the merits of the claim by the Petitioner for the RO.

Posted

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.

NOT LEGAL ADVICE. FOR EDUCATION AND INFORMATION ONLY. DO NOT RELY ON ANY ADVICE YOU RECEIVE FROM ME OR ANY OTHER ATTORNEY IN THIS FORUM. Legal advice comes after a complete review of the facts and relevant documents and an expressed (written) agreement of representation that forms attorney-client confidentiality. Neither of these two events can occur in this forum. Mr. Rafter is licensed to practice in the Commonwealth of Virginia and the US Federal Courts in Virginia. His answers to any Avvo question are rooted in general legal principles--NOT your specific state laws. There is no implied or actual attorney-client relationship arising from this education exchange. You should speak with an attorney licensed in your state, to whom you have provided all the facts before you take steps that may impact your legal rights. Mr. Rafter is under no obligation to answer subsequent emails or phone calls related to this or any other matter.

Asker

Posted

Perhaps i did not state the facts sufficiently. I filed a complaint for contempt in family court and then she filed an obviously retaliatory RO in another court. The issue is, she stated that she was unaware of the contempt and that she had not spoken to her lawyer on the day I filed and emailed him the contempt. Once i got her phone records, they showed otherwise. So I asked her attorney if he did in fact convey it to her and he refuses to answer citing priviledge. I plan to depose him as her knowledge of the complaint is the crux of the issue here. I appreciate all the other advice but I am asking a narrowly focused question. Is whether or not he told her about the complaint prior to her filing for the RO priviledged?

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