This is аn interlocutory appeal of a discovery order. This appeal concerns the scope of the attorney-client privilege between a corporate client and its counsel, and the distinction between legal and business advice.
The order pertinently requires “[t]he [appellant] produce all correspondence, letters, newsletters and directives from its attorneys which are of a general nature, directing and advising the insurance company in the day to day business of handling no-fault or PIP claims. The [appellant] shall also produce all letters, newsletters, and *25 other documents from its attorneys which are used by the [appellant’s] adjustors in the day to day business of handling, processing and adjusting no-fault or PIP claims. . . . The [appellant] is not required to produce correspondence or letters from its attorneys which are directed to specific cases pending in which Southern General Insuranсe Company of Georgia or its insureds are parties.”
Appellant asserts that the order erroneously compels production of documents clearly protected by attorney-client privilege, and that the trial court has required production of certain materials prepared by counsel, at appellant’s specific request, for the purpose of providing legal advice.
Appellee asserts that the scope of protеction provided by the attorney-client privilege to an attorney’s advice to his client is controlled by
Marriott Corp. v. American Academy &c.,
In
Upjohn Co. v. United States,
“Our Code recognizes certain privileges, including the attorney-client privilege, and prohibits the evidentiary use of communications protected by the privilege. See OCGA §§ 24-9-21; 24-9-24 and 24-9-25.”
Williams v. State,
It has been said, and not without cause, that “[t]he exact nature of matters within the attorney-client relationship in the Georgiа law is in a state of hopeless confusion.” Agnor, Use of Discovery under the *26 Ga. Civil Practice Act (3rd ed.), § 2-20. There are four primary statutes that address the attorney-client privilege, and three of these statutes can be traced direсtly to the Code of 1860. It has been asserted “[t]hese statutes are at the center of a confusing and indefinite picture of the attorney-client privilege in Georgia.” Milich, The Attorney-Client Privilege: The Common Law & Ga.’s Uncommon Statutes, 5 Ga. Stаte Law Rev. 27, 36. We do not attempt today to unravel this so-called web of confusion, rather we seek to establish a relatively “bright-line” test, consistent with the century-old statutes of this state.
OCGA § 24-9-21 pertinently provides: “There are certain admissions and communications excluded on grounds of public policy. Among these are ... (2) Communications between attorney and client. . . .”
OCGA § 24-9-24 pertinently provides: “Communications to any attorney . . . pending his employment or in anticipation thereof shall never be heard by the court. The attorney shall not disclose the advice or counsel he may give to his client, nor produce or deliver up . . . other papers, except evidences of debt left in his possession by his client. This Code section shall not exclude the attorney as a witness to any facts which may transpire in connection with his employment.” (Emphasis supplied.)
OCGA § 24-9-25 provides statutory direction, not here applicable, regarding when an attorney may testify for or аgainst his client. Although we have no reservations regarding the general legal principles therein expressed, we find the facts of
Gilbert v. State,
OCGA § 24-9-27 (c) provides: “No party or witness shall be required to make discovery of the advice of his professional advisers or his consultation with them.” (Emphasis supplied.)
It has been suggested that “[t]o the extent these three privilege statutes [OCGA §§ 24-9-21; 24-9-24; 24-9-27] are inconsistent with common law doctrine, the courts can and should ignore them.” Milich, 5 Ga. State Univ. Law Rev., supra at 74. However, these statutes are part of the modernized recоdification of Georgia laws and should be accorded full force and effect until revised or revoked. See OCGA §§ 1-1-1; 1-1-2. Moreover, “statutory privileges of counsel
are conferred for the benefit of clients
and are sacred.” (Emphasis supplied.) 2 EGL, Attorney & Client, § 51, citing
Dover v. Harrell,
In 1887, the Supreme Court in
Fire Assn. of Philadelphia v.
*27
Fleming,
It thus appears that
once an attorney-сlient relationship has been duly established between an attorney and his corporate client that the legal advice confidentially communicated to the authorized agents of the client is by statute protected from discovery, and testimony concerning the content of such advice is inadmissible on grounds of public policy.
OCGA §§ 24-9-21; 24-9-24; 24-9-27 (c); see generally cases cited in paragraph above; 97 CJS, Witnesses, § 276 (c) (3). Wisely or not, the statutes make no distinction between
legal
ad
*28
vice given in regard to specific cases pending and
legal
аdvice concerning day-to-day business matters. See generally
Taylor v. Taylor,
The above-cited statutes, however, do not extend public policy protection to communications made by lawyers to their corporate or individual clients which are not of a confidential nature.
Taylor,
supra at 693; see
Fowler v. Sheridan,
It further is required that the attorney’s advice must primarily concern legal advice rendered “in the line of his profession.” See
Taylor,
supra at 693,
Atlanta Coca-Cola &c.,
supra at 639 (1);
Diversified Indus.,
supra at 602. “The privilege does not simply follow an attorney by virtue of his profession.” Agnor, supra at 52. Moreover, “[t]he attorney-client privilege extends only to confidential communications made for the purpose of facilitating the rendition of
legal
services to the client. [Cit.] Thus, where the attorney acts merely ... as a business adviser [cit.] the privilege is inapplicable.”
United States v. Horvath,
731 F2d 557, 561 (USCA 8th Cir.) “[T]he privilege would never be available to allow a corpоration to funnel its papers and documents into the hands of its lawyers for custodial purposes and thereby avoid disclosure. . . . [I]t seems well settled that the requisite professional relationship is not established when the client seeks
business or personal advice,
as opposed to legal assistance.” (Emphasis supplied.)
Radiant Burners v. American Gas Assn.,
320 F2d 314, 324 (USCA 7th Cir.), cert. den.
The burden is upon the corporation to establish that counsel’s advice was privileged lеgal advice and thus not subject to discovery. See Marriott Corp., supra at 505; Walsh, supra at 494 (10); Diversified Indus., supra at 609 (15). In reaching this determination, the trial court should consider the totality of the circumstances. In addition to the requirement that an attorney-client relationship exists, relevаnt factors generally include, but are not limited to, the nature and purpose of the communication and how and to whom the communication was made. In the case at bar, we note that certain of the allegedly protected communications from counsel apparently were disseminated using a newsletter format. As use of a newsletter is more consistent with dissemination of routine business advice than with transmittal of confidential legal advice, the totality of the circumstances surrounding these particular communications should be strictly scrutinized.
In certain circumstances, the trial court may desire to conduct an in camera proceeding to assist it in determining whether counsel’s advice constituted privileged legal advice that is not subject to discovery. In camera proceedings are appropriate, for example, “when the underlying facts demonstrating the existence of the privilege may be presented only by revealing the very information [to the court that is] sought to be protected by the privilege.” Walsh, supra at 494, n. 5.
This case is remanded to the trial court for reconsideration of appellee’s motion to compel discovery in a manner consistent with this opinion.
Judgment reversed and case remanded with direction.