Krahenbuhl v. The Cottle Firm, 2018 UT App 138 (July 12, 2018)

In this legal malpractice case, the plaintiffs filed an interlocutory appeal of the district court’s denial of their objection to a subpoena duces tecum issued by the defendant-counsel to successor counsel the plaintiffs had retained to continue their representation in the underlying case.  The court of appeals agreed with the plaintiffs that the subpoena violated the attorney-client privilege and reversed the district court’s decision.  It held the “at issue” exception to the attorney-client privilege does not apply in this case because the defendants’ defense, and not the plaintiff’s claims, put the correspondence with successor counsel at issue, or made them potentially relevant.  In doing so, it rejected the defendants’ argument that by filing a legal malpractice claim against one lawyer in the underlying case, a plaintiff waives the privilege with respect to all lawyers who represented him in the underlying case.