O  T  H  E  R      D  E  C  I  S  I  O  N  S  :

Marketplace Center, Inc. v. Bress, 21 Mass. L. Rep. 380, 2006 Mass. Super.
LEXIS 375 (Aug. 18, 2006) (van Gestel, J.).

One cannot help but wonder when reading the decision Marketplace Center whether the end of this legal malpractice claim is the beginning of another.
The defendants were responsible for handing plaintiffs’ tax abatement appeals to the City of Boston for the years 1994 through 1998, and failed to provide requested documentation to the City. A new firm with substantial expertise took over the matters, but the appeals were ultimately dismissed based upon the

failure to provide the requested documentation.

The Court granted defendants’ motion for summary judgment, concluding that the second firm knew or should have known that the failure to provide the documentation would doom the appeal, or, at minimum, understood that the client was incurring additional legal fees trying to undo the damage. This knowledge “which here was far from casual” was attributed to the client and, accordingly, the malpractice claim was time barred.

National Economic Research Assocs., Inc. v. Evans, 21 Mass. L. Rep. 337, 2006
Mass. Super. LEXIS 371 (Aug. 3, 2006) (Gants, J.).

After a consultant left his firm, his former employer engaged a forensic expert to search the hard drive of the consultant’s company computer. The expert retrieved a number of e-mails between the consultant and his attorney.
The consultant, however, had never used his company e-mail account to communicate with his attorney. Rather, he had used a personal, Yahoo account, which he accessed over the Internet using his company computer. Each time he did so, the computer saved a screenshot as a temporary internet file. The employee did not know these screenshots existed, and they could only be retrieved by someone with substantial computer expertise.

The Court held that the consultant had not waived his attorney-client privilege. Although the company handbook warned employees that their company e-mail accounts could be monitored and that the sites they visited could be monitored, the employee did not know the screenshots existed. He deleted the personal files of which he was aware from the computer before leaving. The Court held that he took adequate steps to preserve his privilege.

The Court also, however, spelled out the warnings that an employer must give to employees in order to overcome the privilege in future cases. Employees would be wise not to communicate with their attorneys at all by means of a company computer.