This action for legal malpractice arises from defendant attorneys' representation of plaintiff in connection with and preceding plaintiff's termination from his job.

In motion sequence number 010, plaintiff John Carl moves, pursuant to CPLR 3103, for a protective order denying defendant Joel Cohen's (Cohen) third-party subpoenas ad testificandum on attorneys Mark J. Astarita (Astarita), Sean C. Sheely (Sheely), Jeffrey E. Livingston (Livingston) and Laurence S. Moy (Moy) (together, the successor attorneys) on the ground that [*2]the subpoenas seek the disclosure of information protected by the attorney-client privilege.

In motion sequence number 012, defendant Greenberg Traurig, LLP (Greenberg) moves, pursuant to CPLR 3211 (a) (5), to dismiss the amended complaint against it on the grounds that the claim is barred by the statute of limitations.

In this case, plaintiff worked as a sales director for non-party Alliance Bernstein (Alliance), a mutual and investment company. In September of 2003, Alliance became the subject of a criminal investigation, whereby regulators at the Securities and Exchange Commission and criminal prosecutors at the New York Attorney General's office (the attorney general) accused Alliance of utilizing "market timing" in its mutual funds. Market timing is a practice whereby investors in a mutual fund take advantage of changes in the time zones to buy and sell shares of mutual funds. The attorney general's market timing investigation led to an internal investigation at Alliance (the Alliance investigation). The Alliance investigation sought to ascertain the scope of the alleged market timing practices within its company and to expose and discipline those employees who were responsible.

For a few weeks in the fall of 2003, defendant Cohen, an experienced commercial defense attorney with the firm of Greenberg, was hired by Alliance to represent plaintiff in regard to both Alliance's internal investigation and the attorney general's investigation of Alliance. Shortly after plaintiff was interviewed by Alliance's internal investigators, on November 14, 2003, plaintiff was asked to resign from Alliance. On November 24, 2003, plaintiff discharged Cohen as his counsel, replacing him with the firm of Holland & Knight (Holland).

In his original and amended complaints, plaintiff asserts that Cohen's representation of him constituted legal malpractice on the grounds that, while Cohen was representing him, Cohen had conflicts of interest which resulted in Cohen favoring the interests of Alliance to plaintiff's detriment. To that effect, plaintiff contends that Cohen acknowledged to him that he "formerly and currently represented Alliance," but that he thought that such dual representation "is a good thing and will serve [plaintiff] to his advantage" (Defendant Greenberg's Notice of Motion, Exhibit A, Plaintiff's Amended Complaint, ¶ 128).

Plaintiff maintains that, in fact, Cohen, who never obtained a written conflict-of-interest waiver from plaintiff, was actually beholden to Alliance. In support of this assertion, plaintiff puts forth that, at the same time that Cohen was representing plaintiff, he was also representing Alliance in a case in Florida in regard to the conduct of an Alliance portfolio manager. In addition, plaintiff maintains that Cohen was made aware that the fund managers at Alliance were actually the ones responsible for the market timing problem, and that he possessed documents which supported that fact. Yet, although these documents would have been helpful to plaintiff, Cohen never disclosed these documents. Plaintiff maintains that, at the time of his termination, Alliance's external and internal counsel knew that he had done nothing wrong.

Plaintiff also asserts that defendant Cohen did not adequately represent him, as evidenced by the fact that he failed to seek even a single document or witness to prevent Alliance from using him as a scapegoat. Importantly, Cohen did not advise plaintiff that he could commence a whistleblower lawsuit against Alliance under the Sarbanes-Oxley Act. Cohen also allowed Alliance to file a false Form U-5, which certified that plaintiff's departure from Alliance was due to plaintiff's having been involved in illegal market timing, and to issue certain public statements [*3]and press releases that defamed him by linking him to improper market-timing relationships.

Following his termination from Alliance, plaintiff sought new counsel to represent his interests. Plaintiff hired the firm of Holland & Knight (Holland) on November 24, 2003, the same day that plaintiff ended his relationship with Cohen. Attorneys Sheely and Livingston were the Holland attorneys who represented plaintiff. There is some indication in the record that, prior to November 24, 2003, plaintiff consulted with, but did not hire, attorney Astarita from the firm of Beam & Astarita. In approximately December of 2003, plaintiff and the attorneys from Holland consulted with Moy, an attorney with the firm of Liddle & Robinson, LLP (LR), about plaintiff's potential case against Alliance.

Cohen has served subpoenas ad testificandum on the above-mentioned successor attorneys with whom plaintiff consulted during the time immediately following his termination from Alliance. Plaintiff maintains that, by seeking to depose plaintiff's successor attorneys, defendant Cohen is asking this court to pierce plaintiff's attorney-client privilege.

Initially, it should be noted that, pursuant to discovery motion practice, as well as an oral argument that took place on June 13, 2007, the court ruled in an order, dated August 7, 2007, that plaintiff produce certain documents from the files of his subsequent counsel, and plaintiff has complied with said order. In addition, after reviewing said documents, Cohen discovered that plaintiff and his attorneys at Holland also consulted with Moy at LR. On December 7, 2007, Cohen then moved for an order compelling the production of certain LR documents, and on January 16, 2008, the parties signed a stipulation whereby plaintiff agreed to allow LR to produce the same categories of documents which were permitted under the court's August 7, 2007 order.

The issue at bar in this case is whether Cohen may depose plaintiff's successor attorneys about the contents of and subject matter of these documents, as well as other communications within the parameters set out in the court's August 7, 2007 Order.

In its August 7, 2007 order, the court did not specifically reach the issue of whether deposition testimony may be taken from the successor attorneys. Specifically, as set forth in the hearing transcript associated with the court's August 7, 2007 order, the court stated that plaintiff's production of the documents relating to his subsequent representation by the successor attorneys did not, in itself, establish a broader waiver:

So, if the production is no greater than the bills, that's all the waiver is covering and ....if the bills contain entries relating to communications, parties talking, et cetera, the privilege is back in place. That was not waived because he didn't go beyond producing a bill.

So, he didn't waive the privilege that grew out of each and every communication as was discussed in the bill. He goes back to privilege.

You will have to establish a basis to go past the document which is the bill to get information concerning the underlying communication because that is not waived

"A waiver may also be found where the client places the subject matter of the privileged communication at issue, or where invasion of the privilege is required to determine the validity of the client's claim or defense and application of the privilege would deprive the adversary of vital information [internal citations omitted] (Jakobleff v Cerrato, Sweeney & Cohn, 97 AD2d 834, 835 [2d Dept 1983] [plaintiff did not place her privileged communications with her present attorney at issue, nor was discovery of such communications required to enable defendants to assert a defense merely by bringing an action against her former attorney for legal malpractice]; Credit Suisse First Boston v Ultrecht-American Fin. Co., 27 AD3d 253, 254 [1st Dept 2007]; Raphael v Clune White & Nelson, 146 AD2d 762, 763 [2d Dept 1989] [attorney-client privilege between client and attorneys who had taken over case from law firm was not waived by client's initiating lawsuit. In addition, appellants failed to establish why the disclosure of privileged correspondence was vital to their defense in light of the broad range of materials already supplied by plaintiff]).

However, "that a privileged communication contains information relevant to issues the parties are litigating does not, without more, place the contents of the privileged communication at issue in the lawsuit; if that were the case, a privilege would have little effect [internal quotation marks omitted]" (Deutsche Bank Trust Co. Of Americas v Tri-Links Inv. Trust, 43 AD3d 56, 64 [1st Dept 2007]; Veras Investment Partners, LLC v Akin Gump Strauss Hauer & Feld LLP, 52 AD3d 370, 374 [1st Dept 2008] [Court found that it was error for the JHO to have found a waiver on the basis of relevance alone]). Thus, there is no "at issue" waiver where the party asserting privilege "does not need the privileged documents to sustain its cause of action" (Manufacturers & Traders Trust Co. v Servotronics, Inc., 132 AD2d 392, 397 [4th Dept 1987]; (Deutsche Bank Trust Co. Of Americas v Tri-Links Investment Trust, 43 AD3d at 64 [at issue waiver occurs when a claim or defense has been asserted by a party that he intends to prove by use of the privileged materials]).

Plaintiff asserts that the testimony of his successor attorneys is not discoverable in this case, as it cannot be said that plaintiff placed his privileged communications with his successor attorneys at issue, or that discovery of these communications is required to enable defendants to assert a defense (see Jakobleff v Cerrato, Sweeney & Cohn, 97 AD2d at 834). Specifically, plaintiff asserts that, as he did not begin consulting with his successor attorneys until after his termination on November 14, 2003, and, as plaintiff's successor attorneys did not simultaneously counsel him with Cohen in any post-termination matters, there is no possibility that his successor attorneys have any information that Cohen requires in order to defend plaintiff's claims that Cohen had impermissible and undisclosed conflicts of interest, or that he failed to act in plaintiff's best interests regarding Alliance's defamatory U-5 form and subsequent misleading press releases. In addition, plaintiff notes that he concedes and will stipulate that his successor attorneys have not initiated a "whistleblower" cause of action on his behalf.

Cohen asserts that, as plaintiff has put causation at issue in this case by asserting that Cohen's "acts and/or failure to act" caused him "significant harm" (Cohen's Affirmation in Opposition, Exhibit A, Complaint, at 2), discovery of the successor attorneys' communications may be required to enable Cohen to assert the defense that he was not the proximate cause of plaintiff's harm. To this effect, Cohen argues that, as plaintiff discharged him on November 24, 2003, just 10 days after plaintiff was fired, plaintiff's successor attorneys had an opportunity to [*5]remedy plaintiff's injuries by bringing various causes of action on his behalf within the applicable time limit, but they did not (see Perks v Lauto & Garabedian, 306 AD2d at 261, 262 [appellants submitted evidence establishing that plaintiffs discharged them and hired new counsel two months before the plaintiff's settled their claim against driver. Court held that, under such circumstances, successor counsel had sufficient opportunity to protect plaintiff's rights, and thus, any negligence by appellants was not the proximate cause of plaintiff's alleged damages]; Golden v Cascione, Chechanover & Purcigliotti, 286 AD2d 281, 281 [1st Dept 2001] [where plaintiff's personal injury claim remained viable for nearly two and one-half years after plaintiff's former law firm was relieved as counsel, court held that successor firm had sufficient time to adequately protect plaintiff's rights, and thus, there was no evidence to support a finding that plaintiff's former firm proximately caused plaintiff's alleged injury]).

Specifically, Cohen alleges that plaintiff still had 90 days from his November 14, 2003 termination to bring a "whistleblower" cause of action within the applicable time limit, but, as conceded by plaintiff, plaintiff's successor attorneys chose not to do so. Cohen also asserts that plaintiff's new attorneys had an opportunity to contest plaintiff's Form U-5, as Alliance did not issue the Form U-5 until December 10, 2003, approximately two weeks after Cohen was discharged, and that most, if not all, of the defamatory public statements made by Alliance in various press releases occurred after plaintiff was already speaking to other counsel. Yet, plaintiff's successor attorneys did not commence a defamation lawsuit on Carl's behalf within the applicable limitations period.

However, Cohen does not need further discovery of plaintiff's successor attorneys to determine whether or not these actions were timely taken, as these facts are plain on their face. Thus, plaintiff is entitled to a protective order denying defendant Cohen's third-party subpoena ad testificandum on his successor attorneys.

DEFENDANT GREENBERG'S MOTION TO DISMISS PLAINTIFF'S AMENDED COMPLAINT AGAINST IT (motion sequence number 012)

Defendant Greenberg moves to dismiss plaintiff's amended complaint as against it on the ground that the claim is barred by the statute of limitations. "To prevail in a legal malpractice action, a plaintiff must show that the attorney failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community'" (Perks v Lauto & Garabedian, 306 AD2d 261, 261 [2d Dept 2003]). "Summary judgment based on the defense of the statute of limitations requires that a defendant make a prima facie showing that an action alleging legal malpractice was filed more than three years after the cause of action accrued" (see CPLR 214 [6]; Hasty Hills Stables, Inc. v Dorfman, Lynch, Knoebel & Conway, LLP, 52 AD3d 566, 567 [2d Dept 2008]; Joyce v JJF Assoc., LLC, 8 AD3d 190, 191 [1st Dept 2004]). "A cause of action to recover damages for legal malpractice accrues on the date the malpractice was committed, not when the client discovered it" (Julian v Carroll, 270 AD2d 457, 457 [2d Dept 2000]; Shumsky v Eisenstein, 96 NY2d 164, 166 [2001]).

In November 2006, on the eve of the expiration of the three-year statute of limitations for legal malpractice claims, plaintiff brought this legal malpractice action against defendant Cohen, who represented plaintiff for a few weeks in the fall of 2003. During the time that Cohen represented plaintiff, Cohen was a lawyer at Greenberg. In his amended complaint, which was [*6]filed approximately two years after the three-year statute of limitations for legal malpractice claims had run, plaintiff added Greenberg as a defendant to the action, asserting against Greenberg the same claims that he asserted against Cohen in his original complaint.

Plaintiff now seeks to avoid the expiration of the statute of limitations by asserting that his belated adding of Greenberg as a defendant "relates back" to the commencement of this action, before the statute of limitations had run. The test for determining whether a claim asserted against a new party relates back to the date upon which the claim was interposed against the original named defendants is set forth in the case of Buran v Coupal (87 NY2d 173, 178 [1995]). This test requires that the following three conditions be met:

(1) both claims arise out of same conduct, transaction or occurrence, (2) the party to be joined is united in interest with the original named defendant (s) and, by reason of that relationship, can be charged with notice of the commencement of the action so that the party to be joined will not be prejudiced in maintaining his or her defense due to the delay and (3) the party to be joined knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against him or her as well

Here, plaintiff has met its burden to establish the applicability of the relation-back doctrine as to the first two prongs of the three-prong relation-back test. The asserted claims against Greenberg as Cohen's employer at the time of the alleged malpractice accrued, arise out of the same conduct, transaction or occurrence, and the two parties are united in interest. It should be noted that Greenberg has not challenged plaintiff's position that the first two prongs of the test have been established.

However, plaintiff has failed to establish the third element of the relation-back test, as he has not demonstrated that, but for an excusable mistake as to Greenberg's identity, the action would have been brought against Greenberg as well. "When a plaintiff intentionally decides not to assert a claim against a party known to be potentially liable, there has been no mistake ... the plaintiff should not be given a second opportunity to assert that claim after the limitations period has expired" (Buran v Coupal, 87 NY2d at 181).

In fact, evidence in the record indicates that plaintiff was fully aware of the existence of Greenberg, as well as its role as Cohen's employer, at the outset of the action (see Matter of 27th St. Block Assn. V Dormitory Auth. of State of NY, 302 AD2d at 165 [petitioners were fully aware of the existence of the party it sought to add as a defendant, as well as its central role in the project at issue]). For example, plaintiff acknowledged in his original and subsequent pleadings that "at the times relevant hereto, Cohen was employed by Greenberg Traurig LLP" (Greenberg's Notice of Motion, Exhibit A, Plaintiff's Amended Complaint, ¶ 2; Exhibit B, Plaintiff's Complaint, ¶ 2). Plaintiff also set forth in his original and amended complaints that, before he retained Cohen and Greenberg, Alliance informed him that "he had been assigned to an attorney named Joel Cohen of Greenberg Traurig" (Greenberg's Notice of Motion, Exhibit A, Plaintiff's [*7]Amended Complaint, ¶ 114; Exhibit B, Plaintiff's Complaint, ¶ 96).

Moreover, plaintiff has not demonstrated, nor does he claim, that he was mistaken as to the identity of Greenberg (see Leylegian v Federal Paper Bd. Co., 251 AD2d 60, 61 [1st Dept 1998] [plaintiff did not show or claim that he was mistaken as to the identities of the defendants such that he was entitled to amend his complaint to add these defendants pursuant to the relation-back doctrine]). In fact, plaintiff claims that he failed to timely proceed against Greenberg, because, at the outset of the action, it was his counsel's belief that Greenberg had coverage for Cohen that it would pay out to him, which evidences a "tactical decision to forego suit" against Greenberg, but no mistake as to Greenberg's identity (see id.).

Thus, under the circumstances, the policies underlying the statute of limitations and the relation-back doctrine do not permit plaintiff to commence an action against Greenberg after the expiration of the three-year period specified in CPLR 214 (5) (Nani v Gould, 39 AD3d at 510).

For the foregoing reasons, it is hereby

ORDERED that plaintiff John Carl's motion, pursuant to CPLR 3103, for a protective order denying defendant Joel Cohen's third-party subpoenas ad testificandum on attorneys Sean C. Sheely, Jeffrey E. Livingston and Laurence S. Moy on the ground that the subpoenas seek the disclosure of information protected by the attorney-client privilege is granted; and it is further

ORDERED that defendant Greenberg Traurig, LLP's motion, pursuant to CPLR 3211 (a) (5), to dismiss the amended complaint as against it on the grounds that the claim against it is barred by the statute of limitations is granted, and the complaint is dismissed as to this defendant, and the Clerk is directed to enter judgment in favor of this defendant, with costs and disbursements as taxed by the Clerk; and it is further

ORDERED that the remainder of the action shall continue; and it is further

ORDERED that counsel for plaintiff shall serve a copy of this order with notice of entry within twenty days of entry on counsel for defendants.

DATED: April 7, 2009

ENTER:

___________________________________

Carol Robinson Edmead, J.S.C.