This consolidated appeal follows the trial court’s judgment granting and denying various aspects of a motion to compel filed by St. Simons Waterfront, LLC (“SSW’). In Case No. A12A0716, Hunter, Maclean, Exley & Dunn, PC. (“Hunter Maclean”) appeals the trial court’s grant of the motion in favor of SSW, arguing that the trial court abused its discretion by (1) granting relief in excess of that sought in SSW’s motion to compel; (2) ruling that the attorney-client privilege does not apply to communications with law firm in-house counsel after a client asserts a claim against the firm; (3) ruling that information developed by a law firm in anticipation of a potential claim asserted against it by a client is subject to discovery; and (4) ruling that documents created as part of an internal investigation conducted by a law firm regarding its potential liability are subject to discovery if that investigation occurs while the law firm continues to represent the client. In Case No. A12A0717, SSW appeals the trial court’s denial of its motion to compel as it concerns outside counsel consulted by Hunter Maclean and argues that (1) a memorandum created by outside counsel should be subject to discovery because it was created during the time in which Hunter Maclean continued to represent SSW; (2) no attorney-client relationship existed between Hunter Maclean and the outside counsel; (3) there was no indication that Hunter Maclean intended to keep communications with outside counsel secret; (4) Hunter Maclean has waived any privilege; (5) the crime-fraud exception precludes Hunter Maclean from invoking the attorney-client privilege; and (6) if the privilege applies, SSW is entitled to information not protected by the privilege. Because the trial court employed an erroneous legal theory in reaching its decision, we vacate and remand with direction.
I. Summary .of the Relevant Facts.
a. Hunter Maclean’s Representation of SSW Prior to February 18, 2008. The record reflects that Hunter Maclean was retained by SSW in 2006 to represent the company through the development and sale of high-end condominiums on St. Simons Island,
During Hunter Maclean’s initial representation of SSW, the primary attorneys working for the client were Triece Ziblut, Jennifer Mafera, and Elizabeth Thompson. Ziblut and Mafera advised the client on transactional matters and Thompson joined the representation as a closing attorney.
When buyers began to rescind in late 2007-early 2008, SSW inquired about the possibility of enforcing the specific-performance provision in the sales contract drafted by Hunter Maclean. But a member of the firm’s litigation team advised that he believed it was unlikely a court would grant specific performance due to the large amount of earnest money buyers paid on the high-dollar condominiums (15 percent).
On February 18, 2008, Ziblut, Mafera, and Mason were all involved in a conference call with the SSW representatives the firm had dealt with throughout the course of the firm’s representation, Anna Maria Hatfield and Janet Safran.
b. The February 18, 2008 Conference Call. The parties have two differing versions and recollections of this seminal moment in the history of the case.
1. Hunter Maclean’s Version. According to Mason and Ziblut, the purpose of the call was to advise SSW as to the procedure Mason would use to negotiate with the rescinding buyers concerning the return of earnest money and settlement of claims. Thus, Mason started the conference call by explaining the process and the sufficiency of the buyers’ individual claims to Hatfield and Safran when suddenly a male voice came “booming” unexpectedly over the loudspeaker. That voice belonged to Robert Mundy, the president of SSW.
Mason, Mafera, and Ziblut all testified that Mundy was angry with Hunter Maclean and clearly intended to hold the firm responsible for the buyers’ rescissions. Both Mafera and Mason took a statement by Mundy to the effect of “live by the sword, die by the sword”
2. SSWs Version. According to Safran and Mundy, Mundy spoke up during the February 18 conference call because he was not interested in settling with the rescinding buyers and instead wanted to pursue specific performance. Mundy said that he did not understand Hunter Maclean’s hesitation to pursue specific performance. Safran did not recall Mundy threatening Hunter Maclean, and Mundy testified that he was not looking to bring a claim against Hunter Maclean because there were closings left to finalize. Instead, his intention was to stress SSW’s desire to pursue specific performance, not to settle with the buyers. Both Safran and Mundy testified that the decision to sue Hunter Maclean was made only after SSW obtained new counsel.
c. Hunter Maclean’s Actions after the February 18 Conference Call. The actions of Hunter Maclean after the February 18 call, as reflected by the record and described below, form the crux of the discovery dispute at issue between the parties — including Hunter Maclean’s continued representation
1. Continued Representation of SSW. Mafera testified that after the February 18 call, there was an immediate decision that the firm should seek outside counsel to handle the buyers’ claims for SSW Thus, Hunter Maclean began efforts to locate a new attorney for SSW on February 19. While SSW sought counsel in Atlanta, Hunter Maclean sought to find local counsel for SSW in the Brunswick area. But as late as early March 2008, the efforts to obtain new counsel remained unsuccessful due to the specialized nature of the buyers’ claims, and because the attorneys and firms consulted up to that point all had conflicts of interest.
Meanwhile, Hunter Maclean continued to complete closings and deal with the buyers’ claims after February 18. As to the closings, Thompson testified that the last one she conducted on behalf of SSW occurred in April 2008. And Hunter Maclean continued to conduct closings on behalf of SSW even after SSW obtained new counsel. As to the buyers’ claims, Mafera testified that Hunter Maclean helped stall, respond to, and negotiate those claims; Ziblut testified that the firm continued to write initial response letters to claims as of February 25 and conducted settlement negotiations at SSW’s request; and Mason testified that Hunter Maclean did the best that it could to avoid harm to SSW until new counsel could be obtained, including trying to prevent adverse actions. Indeed, Mason testified that she personally conducted calls with some attorneys for rescinding buyers after February 18. Additionally, Brooks Stillwell — another member of the Hunter Maclean litigation team — counseled SSW after February 18 with regard to rescission letters that required immediate response, advising SSW to “get as many of them closed as quickly as you can and with the least publicity possible” and to initiate “discussions” with buyers.
Nevertheless, Mason opined that the attorney-client relationship between Hunter Maclean and SSW ended after February 18 and that the firm’s involvement with SSW after that point merely entailed limited representation during a transitional period of maintaining the status quo.
2. Hunter Maclean’s Internal Investigation of Potential Claims and Defenses. It is undisputed that after the February 18 conference call, and while continuing to counsel SSW, Hunter Maclean also started looking into its exposure regarding potential claims it thought SSW might assert against the firm. In fact, immediately after the call, Mason went to the office of Arnold Young, in-house general counsel for Hunter Maclean, to report that the firm had been threatened by a client and to inform him of the plan to find new counsel for SSW.
Like Mason, Ziblut also approached Young after the February 18 call and began participating in some of the firm’s defense efforts, including meeting with Young, Mafera, Thompson, Mason, and Still-well, all while continuing to assist SSW. Additionally, Ziblut and Mafera approached Stillwell on February 19 to discuss both how to help SSW with the buyers’ claims and the firm’s exposure to any potential malpractice that had occurred as part of the SSW representation.
Finally, while she continued to represent SSW in negotiations with the rescinding buyers and actively sought new counsel for SSW, Mason also participated in the internal investigation/defense efforts, acting as in-house counsel with Young on the matter.
3. Hunter Maclean’s Consultation with Darla McKenzie. In addition to beginning its internal investigation, Hunter Maclean also contacted Darla McKenzie, an attorney with an Atlanta law firm. Stillwell testified that he initially contacted McKenzie’s firm seeking an attorney familiar with the type of claims the buyers were asserting against SSW. Mafera testified that the firm made an internal decision to hire an expert to look at the rescinding buyers’ claims and that she
Stillwell said that he spoke with attorneys at McKenzie’s firm in terms of seeking representation for the firm and that he instructed Mafera to contact McKenzie because she had been hired for that purpose. Likewise, Mafera testified that she believed she had an attorney-client relationship with McKenzie when they spoke because she had been told that McKenzie was hired to help assess and analyze the potential claims for Hunter Maclean. Thus, Mafera asserted that the firm needed advice from McKenzie regarding how to proceed and that she believed McKenzie knew that she was acting for the benefit of Hunter Maclean.
Mafera admitted that the firm was still representing SSW against the buyers when McKenzie’s advice was sought, and that SSW was never told about McKenzie’s hiring or her conclusions because the firm tried to find local counsel to represent SSW against the buyers, although Mafera did ask McKenzie to recommend counsel for SSW. However, Safran testified that SSW sought McKenzie’s representation as it searched for outside counsel and McKenzie declined representation due to a conflict of interest.
Hunter Maclean’s responses to SSW’s interrogatories and requests for admission contradict the foregoing testimony to some extent. For example, in a response to SSW’s first interrogatories, Hunter Maclean listed McKenzie as an attorney “contacted about representing SSW in connection with the buyers’ claims.” And in response to SSW’s first requests for admission, Hunter Maclean admitted that it sought McKenzie’s advice while continuing to represent SSW and further responded that “it contacted Ms. McKenzie to analyze the various claims and how best to proceed” and that it “contemplated referring [SSW] to Ms. McKenzie but [SSW] took an adverse position to [Hunter Maclean] before [Hunter Maclean] had the chance to put the two in contact.”
4. Jennifer Mafera’s Letter. Finally, either before or after the February 18 conference call, Mafera began to draft a letter to SSW, at SSW’s request, explaining the claims asserted by each of the rescinding buyers and providing guidance as to the possible responses to these claims.
On February 25, SSW requested that the letter be sent to it by FedEx, and Ziblut agreed to do so on February 26. SSW then requested the letter again on February 27. However, the letter was never completed and was never sent to SSW because Young advised Mafera to stop drafting it after he perceived that SSW was adverse to the firm.
d. Reasons for Withdrawal: SSW’s Knowledge and Understanding of Potential Conflicts of Interest. The record reflects that SSW and Hunter Maclean have different understandings regarding why SSW needed to obtain new counsel.
1. Hunter Maclean’s Understanding. Ziblut testified that at the time of the February 18 conference call, she had already determined that the firm needed to cease its representation of SSW and that she had informed SSW a few days before the February 18 call that it needed an independent evaluation of the buyers’ claims.
As to Hunter Maclean’s belief that SSW became adverse to the firm after the February 18 call, Mafera was unsure of whether SSW was ever informed that their perceived threat to the firm had created a new, additional conflict that required Hunter Maclean to withdraw from its representation of SSW. On the other hand, Ziblut testified that she informed SSW’s general counsel in South Carolina that she was concerned that SSW had become adverse to the firm, and that she informed SSW that they were adverse to the firm and needed new counsel. Nevertheless, it appears undisputed that Hunter Maclean never informed SSW that the law firm began evaluating its own exposure or building a defense after February 18, or that Mafera, Ziblut, Mason, and Stillwell were participating in preparing that defense.
2. <S<SW’s Version. SSW’s representatives — -Hatfield, Safran, and Mundy — all testified that Hunter Maclean never informed SSW that the firm had a conflict of interest with SSW. Safran testified that Ziblut instructed SSW to obtain outside counsel only because SSW disagreed with Hunter Maclean’s advice regarding settlement with the buyers, and because Hunter Maclean could not represent SSW in closings and in litigation after the rescissions because they had drafted the documents. Hatfield likewise testified from her notes that Ziblut told her that Hunter Maclean felt that SSW should obtain new counsel because SSW “was not taking any of their advice on the litigation” and because “[t]hey smell blood in the water and . . . feel like we might turn on them.”
e. Current Lawsuit and Discovery Dispute. After obtaining new counsel, SSW filed suit against Hunter Maclean, alleging claims for legal malpractice, breach of fiduciary duty, and fraud concerning Hunter Maclean’s representation of SSW between 2006 and 2008. Specifically, SSW alleged that Hunter Maclean committed legal malpractice by failing to advise SSW properly on the requirements of the Georgia Condominium Act
As discovery between SSW and Hunter Maclean ensued, SSW sought to depose and obtain documents from Darla McKenzie, the outside legal expert consulted by Hunter Maclean. McKenzie objected to SSW’s request for documents on the basis that she had been instructed by counsel for Hunter Maclean that the firm intended to invoke the attorney-client privilege and, thus, objected on that basis and under the work-product doctrine. Hunter Maclean objected to the request for documents and also filed a motion for protective order and motion to quash the deposition of McKenzie, citing the attorney-client privilege and work-product doctrine. To show that an attorney - client relationship existed between Hunter Maclean and McKenzie, Hunter Maclean produced an invoice from McKenzie and her bills to the firm. The trial court granted the protective order and motion to quash on May 6, 2010.
SSW also sought to depose Arnold Young, in-house general counsel at Hunter Maclean. Hunter Maclean filed a motion for protective
In response to these objections by Hunter Maclean and Hunter Maclean’s privilege log, which purportedly identified 21 documents created after February 18, 2008,
On September 15, 2011, the trial court granted SSW’s motion to compel except as to the documentary evidence and deposition of McKenzie, based on its finding that the attorney-client privilege applied.
Looking to the Georgia Rules of Professional Conduct, the trial court determined that because Young was a partner at Hunter Maclean, any conflict of interest that applied to other attorneys in the firm would be imputed to Young.
In making its findings and determination, the trial court rejected the assertion by Hunter Maclean’s legal expert, who opined that the real issue in the case concerned a lawyer’s obligations as to when and how to withdraw from a case
Likewise, after reiterating that no attorney-client relationship existed between Young and Hunter Maclean, the trial court also determined that because Hunter Maclean continued to represent SSW until at least June 2008, “any documents prepared during that time that relate to [SSW] are not protected by the work-product doctrine,” citing our Supreme Court’s decision in Swift, Currie, McGhee & Hiers v. Henry.
The trial court recognized that the issues before it had not yet been decided by the appellate courts in Georgia and properly granted a certificate of immediate review. We then granted Hunter Maclean’s application for interlocutory appeal, and the appeals in Case Nos. A12A0716 and A12A0717 followed.
At the outset, we note that a trial court’s discovery order is reviewed on appeal for an abuse of discretion.
II. Case Nos. A12A0716 and A12A0717.
In Case No. A12A0716, Hunter Maclean appeals the trial court’s grant of SSW’s motion to compel, which holds that the attorney-client privilege and work-product doctrine not apply in the case sub judice to any communications except the firm’s consultation with outside counsel, Darla McKenzie. In Case No. A12A0717, SSW appeals the trial court’s denial of its motion to compel as it concerns Hunter Maclean’s communications with McKenzie. We will address these contentions together in our determination that it is necessary to remand this case to the trial court for additional proceedings consistent with this opinion.
a. Attorney-Client Privilege.
The attorney-client privilege “is the oldest of the privileges for confidential communications known to the common law.”
The foregoing statutory provisions reflect the public policy that “persons should feel that they may securely say anything to members of the profession in seeking aid in their difficulties, although the person whose advice they seek may have been employed, or may be afterwards employed, against them.”
In considering the scope of the attorney-client privilege, we begin by noting that the privilege undoubtedly protects communications between corporate employees and in-house counsel.
Georgia has yet to address the applicability of the attorney-client privilege to a law firm’s in-house communications concerning a current client. To put it plainly, we are in uncharted jurisprudential waters. And while opinions from other jurisdictions can and often are useful in providing guidance on novel questions of law, our charge as a Georgia appellate court is to outline an analytical framework for the issue before us that is, to the greatest extent possible, firmly rooted in this state’s statutes, case law, and rules of professional conduct. In our view, none of the decisions from other jurisdictions addressing this issue do so in a way that is entirely consistent with Georgia law.
At this juncture, it is important to emphasize that in Georgia “[a] lawyer’s representation of a client [when] the lawyer has a financial or personal interest which will or reasonably may affect the lawyer’s professional judgment illustrates one of the most blatant appearances of impropriety.”
[t]he requirements of full disclosure and written notice to or consent from the client are intended to insure to some extent both that a client will receive professional legal services, and that a lawyer may be protected should he or she choose the risky course of representinga client despite the lawyer’s potentially conflicting personal or financial interest. 33
Nevertheless, we reject the Draconian rule adopted in other jurisdictions that automatically imputes conflicts of interest to in-house counsel, because there is no explicit textual justification for such an approach in this State’s rules of professional conduct,
Indeed, in this very case, the facts demonstrate why a bright-line rule is entirely untenable. A lawyer who has a nonwaivable conflict of interest with a client no doubt must withdraw, but a firm concerned with whether a client has a malpractice claim against it will often need to carefully consider that question. Yet, a lawyer who must withdraw clearly cannot do so in a way that violates his ethical obligations to the client. What then is a conflicted lawyer to do when there are multiple ongoing representations and, despite the lawyer’s reasonable efforts, replacement counsel is unable to quickly step in and take over the representation? In such a situation, the conflicted lawyer finds himself in the awkward position of either hastily withdrawing in violation of the professional rules of conduct, having to consult with (and hire) outside counsel, or risk waiver of the privilege. Suffice it to say, we think it strains credulity to suggest that there is any basis in Georgia law for adopting a rule that places clients in the perilous position of having their lawyers withdraw prematurely or without careful advice. Accordingly, we conclude that the scope and applicability of the attorney-client privilege in circumstances like those presented in the case sub judice depends entirely on the specific facts of each given case.
a. While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule 1.7: Conflict of Interest: General Rule, 1.8 (c): Conflict of Interest: Prohibited Transactions, 1.9: Former Client or 2.2: Intermediary.
b. When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer unless:
1. the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
2. any lawyer remaining in the firm has information protected by Rules 1.6: Confidentiality of Information and 1.9 (c): Conflict of Interest: Former Client that is material to the matter.
c. A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7: Conflict of Interest: General Rule.
Imputed disqualification is also referred to as “vicarious disqualification,” and it “occurs when one attorney could handle the matter if he were a sole practitioner but is prohibited [from doing so] because of a relationship with a partner or an associate who is barred from the same representation ”
[s]uch situations can be considered from the premise that a firm of lawyers is essentially one lawyer for purposes of the rules governing loyalty to the client, or from the premise that each lawyer is vicariously bound by the obligation of loyalty owed by each lawyer with whom the lawyer is associated.42
Nevertheless, when firm counsel “individually has no conflict of interest under Rule 1.7 or Rule 1.9, and the in-firm communication meets the ordinary requirements for privilege,” we conclude that “courts should not automatically impute a conflict under Rule 1.10.”
Additionally, courts should not impute a conflict to part-time firm counsel when “the lawyer who serves in that capacity does so on a formal, ongoing basis, such that the firm is clearly established as the client before the in-firm communication occurs.”
As for lawyers who act as firm counsel on an ad hoc basis (e.g., when the firm does not have a formal in-house counsel position or when firm counsel delegates matters to other attorneys inside the firm), these individuals “should be subject to imputation unless the firm can show that an attorney-client relationship was established before the in-firm communication occurred,” which shifts the burden to the law firm “to show that the identity and role of ‘firm counsel’ was clearly defined.”
if a lawyer acts as firm counsel on an ad hoc basis and does not qualify for an exception to the ordinary imputation of conflicts, but the communication at issue occurred in response to an assertion of wrongdoing by the client, then the client’s willingness to continue the representation might be viewed as a waiver of the imputed conflict. [When] the firm discovers potential wrongdoing and promptly notifies the client, there also may be an argument for waiver if the client elects to continue the representation. [When] the firm discovers potential wrongdoing and has not yet notified the client, however, there is no argument for waiver, [because]' the client has not been informed of firm counsel’s potential conflict.55
With regard to the waiver of firm counsel’s imputed conflict, it must be remembered that law firms have ethical duties to inform clients of decisions or circumstances with respect to which the client’s informed consent is required,
does not give rise to a per se conflict of interest between the firm and its client, although a personal conflict will arise if the principal goal of the . . . consultation is to protect the interest of the consulting lawyer or law firm from the consequences of a firm lawyer’s misconduct.58
In that situation, “the representation may continue only if the client gives informed consent.”
Given these considerations, we are mindful that there may be situations in which our rules of professional conduct require withdrawal from representing a client
Having articulated the proper standard to apply, we must remand to the trial court for additional factfinding. On remand, the trial court should evaluate whether the communications at issue otherwise meet the standard for attorney-client privilege. In reaching this determination, “the trial court should consider the totality of the circumstances” and “[i]n addition to the requirement that an attorney-client relationship exists, relevant factors generally include, but are not limited to, the nature and purpose of the communication and how and to whom the communication was made.”
As to the requests pertaining to Darla McKenzie, the trial court — having determined that the information is privileged— should evaluate those items in camera to determine whether the privilege has been overcome to some extent pursuant to the general guidelines established above.
b. Work Product Doctrine.
Georgia law protects work product under OCGA § 9-11-26, which provides in pertinent part that
a party may obtain discovery of documents and tangible things otherwise discoverable [and relevant] and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.70
And even if the required showing is made, “the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other
Much of our analysis of the attorney-client privilege supra applies to the work-product privilege as well.
On remand, the trial court should conduct an in camera review of the items claimed as work product pursuant to Hunter Maclean’s defense efforts under the same standard we have set forth above for determining whether a conflict exists so as to overcome the attorney-client privilege. Additionally, the court should again consider whether those documents meet the standard set forth by our Supreme Court in Swift, Currie, McGhee & Hiers v. Henry such that they rightfully belong to SSW because they were created in the course of Hunter Maclean’s representation of SSW.
Accordingly, for all the foregoing reasons, we vacate the trial court’s order and remand this case for proceedings consistent with this opinion.
Judgment vacated and case remanded with direction.
Notes
The properties ranged in price from approximately $700,000 to $1,000,000.
See The Holy Bible, Matthew 26:52 (Catholic Edition RSV) (“Then Jesus said to him, ‘Put your sword hack into its place; for all who take the sword will perish by the sword.’ ”).
Mason testified that she believed SSW was firing the firm on that call but that there were still closings to finalize. Likewise, Ziblut testified that Mundy was venting his anger and clearly was not looking for Hunter Maclean to serve as counsel any longer than necessary.
Although she is a fact witness, Mason also served as co-counsel in the litigation between the parties.
It is unclear from the record whether McKenzie’s conflict was due to Hunter Maclean’s consultation or some other matter.
According to Mafera and Ziblut, the letter was requested and started prior to the February 18 conference call. Mason testified that SSW only requested the letter during the February 18 call, that the letter was not started until February 21, that both Mafera and Stillwell edited the letter, and that Mafera’s testimony on the matter was incorrect.
Mafera also testified that Young saw the letter and knew that it was started prior to the February 18 call.
Mafera further testified that she was told by Ziblut prior to the February 18 call that Ziblut had informed SSW about the potential need for outside counsel due to a possible conflict resulting from Hunter Maclean having drafted the contract the buyers were attempting to rescind.
See OCGA § 44-3-70 et seq.
The record before us does not contain a copy of Hunter Maclean’s privilege log.
This holding by the trial court forms the basis of SSW’s cross-appeal in Case No. A12A0717.
See Ga. Rules of Prof’1 Conduct R. 1.7 (conflicts of interest); Ga. Rules of Prof’l Conduct R. 1.10 (imputed disqualification).
See Ga. Rules of Prof’1 Conduct R. 1.16 (declining or terminating representation).
We recognize that in reaching its decision, the trial court relied on Bank Brussels Lambert v. Credit Lyonnais (Suisse), S.A., 220 FSupp.2d 283, 287-88 (III) (A) (S.D. N.Y. 2002). Our departure from this case and others with similar holdings is discussed infra at footnote 26. The trial court also relied on this Court’s decision in Dick v. Williams,
[l]awyers practicing in the same firm should not be allowed to create multiple legal entities and parcel their clients among them in order to circumvent an otherwise existing conflict, and it necessarily follows that they should not be able to do so in order to allow some lawyers in the firm to have an “interest” in a particular matter while others do not.
Id. at 632 (1). Given the factual distinction between the situation at issue in Williams and that with which we are concerned in the case sub judice (i.e., the ability of a law firm to maintain attorney-client privilege with in-house counsel), the holding of Williams is inapposite and the trial court’s reliance on same is misplaced.
See, e.g., McMillian v. McMillian,
Tenet Healthcare Corp. v. La. Forum Corp.,
United States v. Jicarilla Apache Nation,_U. S._,_(II) (131 SC 2313, 180 LE2d 187) (2011) (punctuation omitted).
See OCGA § 24-9-21 (2) (“There are certain admissions and communications excluded on grounds of public policy. Among these are . . . [c]ommunications between attorney and client. ...”).
OCGA § 24-9-24.
OCGA § 24-9-25.
OCGA § 24-9-27 (c); see also Expedía, Inc. v. City of Columbus,
Tenet Healthcare Corp.,
Tenet Healthcare Corp.,
See Upjohn,
See Koen Book Distributors v. Powell, Trachtman, Logan, Carrie, Bowman & Lombardo, P.C., 212F.R.D. 283, 285 (E.D. Pa. 2002) (“[W]e must determine whether the defendant law firm engaged in a conflict of interest, that is, representation adversely implicating or affecting the interests of the plaintiffs, when it was receiving information from and/or providing legal advice to several of its lawyers while at the same time continuing to represent those plaintiffs.”); In re Sunrise Securities Litigation,
See Tattletale Alarm Sys., Inc. v. Calfee, Halter & Griswold, LLP, No. 2:10-cv-226,
Id.
In this regard, as further discussed infra, we find no overt support within our prior case law, statutes, or rules of professional conduct to warrant adopting the sweeping, bright-line rule of automatic imputation of conflicts of interest to in-house counsel. See Francis J. Menton, Jr., Does the Attorney-Client Privilege Cover a Law Firm’s Consultation With In-House Counsel About Issues Involving Current Clients?, 10 Engage: J. Federalist Soc’y Prac. Groups 111, 111 (July 2009) (criticizing automatic-imputation rule as failing to “recognize the practical realities of firms attempting to identify and react appropriately to developing conflicts in ongoing situations”); see also Garvy v. Seyfarth Shaw LLP,
Elizabeth Chambliss, The Scope of In-Firm Privilege, 80 Notre Dame L. Rev. 1721, 1745 (II) (C) (2005).
In the Matter of Oellerich,
J. Randolph Evans & Shari L. Elevens, Georgia Legal Malpractice 169 (2011).
In the Matter of Oellerich,
To the extent that Rule 1.10 can be read to endorse such a sweeping rule, see Menton, supra note 29, at 113 (questioning the realistic ability to quarantine in-house counsel in light of Rule 1.10), we reject such an interpretation/application of the rule in the context of in-house counsel for law firms because adopting same would lead to patently absurd results, as discussed infra, and this Court “may construe statutes [and the like] to avoid absurd results.” State v. Mussman,
See In the Matter of Turk,
Chambliss, supra note 30, at 1747 (II) (C).
Id.
Menton, supra note 29, at 111-12.
Chambliss, supra note 30, at 1748 (II) (C).
Id. at 1745 (II) (C); see Ga. Rules of Prof’l Conduct R. 1.7 (a) (“Alawyer shall not represent or continue to represent a client if there is a significant risk that the lawyer’s own interests or the lawyer’s duties to another client, a former client, or a third person will materially and adversely affect the representation of the client____”); Ga. Rules of Prof’l Conduct R. 1.7 (b) (“If client informed consent is permissible a lawyer may represent a client notwithstanding a significant risk of material and adverse effect if each affected client... gives informed consent, confirmed in writing, to the representation after ... consultation with the lawyer ..., having received in writing reasonable and adequate information about the material risks of and reasonable available alternatives to the representation, and . . . having been given the opportunity to consult with independent counsel.”); see also Ga. Rules of Prof’1 Conduct R. 1.0 (b) (defining “confirmed in writing”); Ga. Rules of Prof '1 Conduct R. 1.0 (h) (defining “informed consent”).
Evans & Elevens, supra note 32, at 177.
Ga. Rules of Prof’l Conduct R. 1.10, cmt. 6.
Chambliss, supra note 30, at 1748 (II) (D); see Ga. Rules of Prof’l Conduct Rule 1.7; Ga. Rules of Prof’l Conduct R. 1.9; Ga. Rules of Prof’l Conduct R. 1.10; see also Hertzog, Calamari & Gleason v. Prudential Ins. Co. of Am., 850 FSupp. 255, 255 (S.D. N.Y. 1994) (“The privilege attaches to communications with in-house counsel if the individual in question is acting as an attorney, rather than as a participant in the underlying events.”).
Chambliss, supra note 30, at 1748 (II) (D).
Id. This “exception to imputation is justified by the structural segregation of the in-house position and the formal designation of the firm as firm counsel’s only client.” Id.
Id. at 1749 (II) (D). See generally Elizabeth Chambliss, The Professionalization of Law Firm In-House Counsel, 84 N.C. L. Rev. 1515, 1520-21 (2006) (providing examples of in-house counsel positions and describing the benefits of firm counsel who are compensated directly for in-house service and who give up outside practice).
See generally Mark J. Fucile, The Double Edged Sword: Internal Law Firm Privilege and the “Fiduciary Exception,” 76 Def. Couns. J. 313, 317-18 (IV) (July 2009) (suggesting the following steps for establishing privilege in the first place: “(a) formally designating internal counsel (whether by position, title or committee) so the ‘attorney’ side of the attorney-client privilege is clearly delineated; (b) not mixing lawyers providing the advice with those receiving it so the ‘client’ side of the attorney-client privilege is equally demarcated; (c) billing internal counsel’s time (and that of the firm lawyers seeking the consultation) to the firm so that it will be clear that the firm itself is the client for the advice rendered; and (d) giving (and keeping) the advice in a confidential setting for the same reasons done so generally for the privilege to attach and to be preserved” (footnotes omitted)); Barbara S. Gillers, Preserving the Attorney Client Privilege for the Advice of a Law Firm’s In-House Counsel, 2000 Prof. Law. 107, 111 (C) (2000) (suggesting the following steps to maintain privilege when in-house counsel is consulted for ethics advice: (1) identify specifically the attorneys who will give legal advice to firm; (2) set up a separate billing number for the firm matter; (3) distinguish between firm attorneys who are clients and firm attorneys who are counsel with those who are counsel having no involvement in the underlying matters; (4) inform firm employees that cooperation is necessary, communications confidential, and to keep communications confidential; and (5) inform employees who are interviewed about potential conflicts under Rule 1.13).
Chambliss, supra note 30, at 1749 (II) (D). Although the outside practice of counsel in such a position may lead to individual conflicts of interest (for example, when counsel formerly represented the current client seeking discovery), “the maintenance of an outside practice, per se, presents no additional argument in favor of imputation.” Id.
Id.
Id. at 1745 (II) (C).
Id. at 1749 (II) (D). Ad hoc firm counsel “should bill the firm for time spent on in-house matters, or at least create a separate billing number in order to record the time spent.” Id.
We pause to emphasize that we are concerned in this opinion not with a situation in which an attorney seeks in-house ethics advice or counsel regarding potential malpractice and the attorney’s resulting obligations to the client, and nothing written in this opinion should be construed as discouraging the candid disclosure of information that should and must occur in furtherance of the duty of loyalty owed to a client. See, e.g., Ga. Rules of Prof'1 Conduct R. 1.6, cmt. 7A (“A lawyer’s confidentiality obligations do not preclude a lawyer from securing confidential legal advice about the lawyer’s personal responsibility to comply with these Rules. In most situations, disclosing information to secure such advice will be impliedly authorized for the lawyer to carry out the representation.”); Ga. Rules of Prof’l Conduct R. 5.1, cmt. 3 (noting that “[sjome firms... have a procedure whereby junior lawyers can make confidential referral of ethical problems directly to a designated senior partner or special committee”). Instead, we are concerned with issues that arise in an adversarial context and the communications that occur when a law firm takes steps to protect itself against a perceived or certain malpractice threat by a client.
Chambliss, supra note 30, at 1750 (II) (D).
Id.
Id.
See Ga. Rules of Prof’l Conduct R. 1.4 (a) (1) (“A lawyer shall. . . promptly inform the client of any decision or circumstance with respect to which the client’s informed consent... is required by these Rules____”); see also Ga. Rules of Prof’1 Conduct R. 1.0 (h) (“ ‘Informed consent’ denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”).
Chambliss, supra note 30, at 1751 (II) (D).
ABA Comm, on Ethics and Prof’l Responsibility, Formal Op. 08-453 (2008).
Id.; see also Paul v. Smith, Gambrell & Russell,
See Both v. Frantz,
See Restatement (Third) of The Law Governing Lawyers § 82 (b) cmt. d (2000) (“The authorities agree that the exception . . . applies to client conduct defined as a crime or fraud. Fraud, for the purpose of the exception, requires a knowing or reckless misrepresentation (or nondisclosure when applicable law requires disclosure) likely to injure another....”); see also Chambliss, supra note 30, at 1751 (II) (D).
See Ga. Rules of Prof’l Conduct R. 1.7 (a) (“A lawyer shall not represent or continue to represent a client if there is a significant risk that the lawyer’s own interests or the lawyer’s duties to another client, a former client, or a third person will materially and adversely affect the representation of the client, except as permitted [by obtaining the client’s informed consent].”); Ga. Rules of Prof’l Conduct R. 1.7 (c) (listing the situations in which informed consent is impermissible); see also Ga. Rules of Prof’l Conduct R. 1.16 (a) (1) (“[A] lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if... the representation will result in violation of the Georgia Rules of Professional Conduct or other law . . . .”).
See Ga. Rules of Prof’l Conduct R. 1.16 (b), (d).
See Ga. Rules of Prof’l Conduct R. 1.7 (b) (describing process for obtaining informed consent); Ga. Rules of Prof’l Conduct R. 1.10; see also William T. Barker, Law Firm In-House Attorney-Client Privilege Vis-A-Vis Current Clients, 70 Def. Couns. J. 467, 471 (Oct. 2003) (“There is no reason to deny [the privilege] to lawyers the client has chosen to continue using, even after a known dispute with those lawyers has arisen. In a very real sense, the client creates this problem by continued use of the lawyer, and the client ought not to reap a collateral advantage in the dispute from choosing to do so. Especially, the client ought not to do so where the law firm is not free to withdraw.”).
See Ga. Rules of Prof’l Conduct R. 1.7 (c) (2), (3) (“Client informed consent is not permissible if the representation . . . [i]ncludes the assertion of a claim by one client against another client represented by the lawyer in the same or substantially related proceeding ...” or “[i]nvolves circumstances rendering it reasonably unlikely that the lawyer will be able to provide adequate representation to one or more of the affected clients.”); Ga. Rules of Prof’l Conduct R. 1.10 (a) (“While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule 1.7: Conflict of Interest: General Rule . . . .”).
Ga. Cash Am., Inc. v. Strong,
See Thelen Reid & Priest LLP v. Marland, No. C 06-2071 VRW,
OCGA § 9-11-26 (b) (1) (“Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party . . . .”).
See supra note 65; see also Ronald D. Rotunda, Why Lawyers Are Different & Why We Are the Same, 44 Akron Law Rev. 679, 708-09 (VIII) (“The ethics rules envisage that the law firm should advise the firm’s client of... possible malpractice. It does not matter whether inside counsel or outside counsel has advised that there is malpractice. The case law shows that if the law firm discovers that it has committed malpractice, the lawyer should inform the law firm’s client, as part of its duty to keep the client well-informed. The law firm’s obligation does not depend on whether inside or outside counsel has delivered the bad news.” (footnotes omitted)).
OCGA § 9-11-26 (b) (3).
Id.
See Thelen Reid & Priest LLP,
Id.
Id. (punctuation omitted).
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