A recent Superior Court case held that a divorce lawyer who was sued for malpractice by a client could depose the successor counsel who represented that client in a modification action. That the client waives attorney-client privilege when malpractice is asserted is black-letter law. Here, the court extended that waiver to the successor counsel hired to fix the problems that the original lawyer had allegedly failed to address. The case should, at the very least, remind mediators that our confidentiality statute isn’t bulletproof — in the event of a malpractice claim, the statute will not protect mediation communications from disclosure. See, e.g. Bobick v. United States Fid. & Guar. Co., 439 Mass. 625, 658 n.11 (2003). DiPietro v. Erickson, 2010 WL 1178410 (Mass.Super.) (March 16, 2010).
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