A federal court Judge Magistrate in Manhattan was asked to allow an attorney defending a legal malpractice claim, to learn what advice the new attorney gave to the client after he was replaced. The attorney was retained to assist the client in dispute's arising from the client's financing of life insurance policies. (This is particularly problematic when the replacement counsel also represents the client on the legal malpractice claim-which can result in a third party action against an attorney who wants to do it all.)

The Judge denied the motion on August 11, 2017 and explained why the defendant is not permitted to invade the attorney-client privilege: "Because Windsor (client) will not be relying on any communications with (replacement) counsel, it is the defendants' burden to show why the privileged material is so critical to their defense....Whether Windsor (client) and/or new counsel took appropriate actions to clean up their mess will be judged by the actions Windsor and its (replacement) counsel actually took, not based on the advice new counsel gave...." Windsor Securities v Arent Fox, 16-cv-01533