317 Ga. App. 1
Ga. Ct. App.2012Background
- Hunter Maclean represented SSW from 2006 through mid-2008 over condo development and related rescissions.
- After February 18, 2008, SSW sought new outside counsel while Hunter Maclean continued some closings and responses to claims.
- Hunter Maclean activated an internal investigation into potential claims and defence strategies, including in-house participation with Arnold Young and outside counsel Darla McKenzie.
- Mafera drafted a letter explaining buyers’ claims; it was not sent after in-house counsel advised stopping due to conflict.
- SSW subsequently sued Hunter Maclean for legal malpractice, fiduciary breach, and fraud, seeking damages and fees.
- The trial court granted partial discovery relief but denied some aspects, then remanded for further consideration of privilege and work product.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of in-firm privilege with in-house counsel | SSW argues in-house communications may be privileged if no conflict exists | Hunter Maclean contends in-house counsel communications are not privileged due to potential conflicts | Remand needed; established framework to decide on privilege based on conflict and segregation |
| Waiver and imputed conflicts within firm | SSW asserts no waiver of privilege occurred; firm failed to disclose conflicts | Firm argues conflicts may be imputed; waiver possible with informed consent | Remand to assess waiver and imputed conflicts for privilege applicability |
| Discovery of work product related to internal defense | SSW seeks internal defense materials created post-Feb 18 to respond to claims | Defendant asserts work product safeguards apply; deliberations remain privileged | Remand to determine whether materials constitute work product or fall under privilege |
| Effect of outside counsel McKenzie communications | SSW contends McKenzie communications may be relevant and not privileged | Firm asserts privilege covers communications with outside expert if conflict | Remand to determine privilege status of McKenzie communications and whether waiver occurred |
| Overall remand directive on privilege/work product | N/A | N/A | Court vacates order and remands for further factfinding under clarified framework |
Key Cases Cited
- Rose v. Commercial Factors of Atlanta, Inc., 262 Ga. App. 528 (Ga. App. 2003) (attorney-client privilege scope in corporate context; privilege applied)
- Tenet Healthcare Corp. v. La. Forum Corp., 273 Ga. 206, 273 Ga. 206, 538 S.E.2d 441 (Ga. 2000) (professional conduct; conflicts and privilege interplay)
- In the Matter of Oellerich, 278 Ga. 22, 596 S.E.2d 156, 278 Ga. 22, 596 S.E.2d 156 (Ga. 2004) (in-house counsel and firm privilege considerations; conflict rules)
- Rose v. Commercial Factors of Atlanta, Inc., 262 Ga. App. 528, 586 S.E.2d 41 (Ga. App. 2003) (attorney-client privilege and discovery principles)